April 24, 2008

Boris Kleyman, P.C. v Kemper Ins. Co. (2008 NY Slip Op 50877(U))

https://www.beynensonlaw.com/case-law/boris-kleyman-p-c-v-kemper-ins-co-2008-ny-slip-op-50877u/

Court: Appellate Term, Second Department
Decided: April 24, 2008
Citation: 2008 NY Slip Op 50877(U) · 19 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Provider's prima facie case
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Boris Kleyman, P.C. v Kemper Ins. Co., 19 Misc 3d 138(A), 2008 NY Slip Op 50877(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 illegible peer review reports failed to raise a triable issue of fact concerning medical necessity. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The provider established its prima facie entitlement by proving submission of a statutory claim form stating the fact and amount of the loss and that payment was overdue under Insurance Law § 5106 (a). The burden therefore shifted to the insurer, whose illegible reports did not support a factual dispute. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider's motion for summary judgment.

Reported in New York Official Reports at Boris Kleyman, P.C. v Kemper Ins. Co. (2008 NY Slip Op 50877(U))

[*1]

Boris Kleyman, P.C. v Kemper Ins. Co.

2008 NY Slip Op 50877(U) [19 Misc 3d 138(A)]

Decided on April 24, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-565 Q C.

Boris Kleyman, P.C. a/a/o Andy Alexis, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 27, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity. This appeal by plaintiff ensued.

Contrary to defendant’s contention, plaintiff established its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The peer review reports submitted by defendant in support of its defense that the services rendered were not medically necessary are illegible. Thus, defendant failed to demonstrate the existence of a triable issue of fact as to medical necessity (see generally West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 24, 2008

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer failed to raise a triable issue on medical necessity because the peer review reports it submitted were illegible, so the provider's motion should have been granted.

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, 109 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Rejected the insurer's contention and held the provider established prima facie entitlement by proof of submission of the statutory claim form and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U))A diagnostic provider performing prescribed MRIs remains subject to a lack-of-medical-necessity defense.

Similar decisions

Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co. (2008 NY Slip Op 51928(U))The insurer's unsigned peer-review report was inadmissible and failed to raise a triable issue 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.
Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))The insurer established lack of medical necessity through an affirmed peer review report that the provider did not rebut with medical evidence.
563 Grand Med., P.C. v Kemper Auto & Home Ins. Co. (2010 NY Slip Op 50582(U))The provider failed to establish a business-record foundation through its outside billing company's employee and was denied summary judgment.
Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co. (2012 NY Slip Op 51713(U))The insurer's sworn IME report established lack of medical necessity, and the provider did not rebut the insurer's prima facie showing.