April 28, 2009

Bongiorno v State Farm Ins. Co. (2009 NY Slip Op 50860(U))

https://www.beynensonlaw.com/case-law/bongiorno-v-state-farm-ins-co-2009-ny-slip-op-50860u/

Court: Appellate Term, Second Department
Decided: April 28, 2009
Citation: 2009 NY Slip Op 50860(U) · 23 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Bongiorno v State Farm Ins. Co., 23 Misc 3d 137(A), 2009 NY Slip Op 50860(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's unrebutted IME report and claims affidavit established its entitlement to summary judgment for lack of medical necessity. The Civil Court had denied the insurer's motion, finding a factual issue concerning the necessity of the services, although the provider submitted no opposition papers. The Appellate Term, Second Department, reversed and granted the insurer's motion dismissing the complaint. The claims support services supervisor's affidavit and affirmed IME report established that the claims were properly and timely denied for lack of medical necessity. Because the provider offered no opposition, that prima facie showing remained unrebutted.

Reported in New York Official Reports at Bongiorno v State Farm Ins. Co. (2009 NY Slip Op 50860(U))

[*1]

Bongiorno v State Farm Ins. Co.

2009 NY Slip Op 50860(U) [23 Misc 3d 137(A)]

Decided on April 28, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2008-542 RI C.

William Bongiorno, D.C. as assignee of VICTORIA ARDIZZONE, Respondent,
against
State Farm Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered February 11, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff did not submit opposition papers. The Civil Court denied defendant’s motion for summary judgment, finding that an issue of fact exists as to whether the services rendered were medically necessary. The instant appeal by defendant ensued.

Defendant, through the submission of the affidavit of its claims support services supervisor and the affirmed independent medical examination report, made a prima facie showing that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not oppose defendant’s motion, defendant’s prima facie showing was unrebutted, thereby entitling defendant to summary judgment dismissing the complaint (see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op [*2]51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 28, 2009

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the affirmed IME report made a prima facie showing of lack of medical necessity, and because the provider filed no opposition the showing was unrebutted, entitling the insurer to summary judgment.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the claims support supervisor's affidavit showed the claims were properly and timely denied, as part of the insurer's unopposed prima facie showing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))The insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional.
A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.B. Med. Servs., Pllc v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50550(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.