October 25, 2012

Complete Radiology, P.C. v Progressive Ins. Co. (2012 NY Slip Op 52079(U))

https://www.beynensonlaw.com/case-law/complete-radiology-p-c-v-progressive-ins-co-2012-ny-slip-op52079u/

Court: Appellate Term, Second Department
Decided: October 25, 2012
Citation: 2012 NY Slip Op 52079(U) · 37 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Complete Radiology, P.C. v Progressive Ins. Co., 37 Misc 3d 133(A), 2012 NY Slip Op 52079(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 provider's summary judgment motion failed on medical necessity, but denial timeliness remained disputed for one claim. The insurer established mailing procedures and a timely medical-necessity denial for services rendered November 16, 2007. For services rendered October 30, 2007, a discrepancy between the provider's asserted mailing date and the insurer's asserted receipt date created a factual issue about denial timeliness. Two affirmed peer reviews supplied factual bases and medical rationales that rebutted the provider's medical-necessity letter. The Appellate Term, Second Department, modified the order, insofar as appealed from, by vacating the timely-denial finding for the October claim and otherwise affirmed, leaving the provider's motion denied.

Reported in New York Official Reports at Complete Radiology, P.C. v Progressive Ins. Co. (2012 NY Slip Op 52079(U))

[*1]

Complete Radiology, P.C. v Progressive Ins. Co.

2012 NY Slip Op 52079(U) [37 Misc 3d 133(A)]

Decided on October 25, 2012

Appellate Term, Second Department

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

As corrected in part through December 3, 2012; it will not be published in the printed Official Reports.

Decided on October 25, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2939 Q C.

Complete Radiology, P.C. as Assignee of BELLA FINKELSHTEYN, Appellant,
against
Progressive Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 21, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and found that defendant had issued timely denials of the claims in question.

ORDERED that the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied its motion for summary judgment and found that defendant had issued timely denials of the claims in question.

The proof submitted by defendant in opposition to plaintiff’s motion was sufficient to establish a standard office practice and procedure designed to ensure that defendant’s denials had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 [*2]Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and we find that defendant established that it had timely denied, on the ground of lack of medical necessity, the claim for $912 for services rendered on November 16, 2007. However, as to the claim for $879.73 for services rendered on October 30, 2007, we find that there is an issue of fact as to whether this claim was timely denied, as there is a significant discrepancy between the date the bill had been sent, as claimed by plaintiff, and the date the bill had been received, as claimed by defendant. Defendant also submitted two affirmed peer review reports, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for all of the services at issue, and which sufficiently rebutted the letter of medical necessity submitted by plaintiff, thereby creating an issue of fact. In view of the foregoing, plaintiff’s motion for summary judgment was properly denied, and we vacate the Civil Court’s finding that the claim for $879.73 was timely denied.

Accordingly, the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated, and the order, insofar as appealed from, is otherwise affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: October 25, 2012

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.

Proof of mailing

Open the full map

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

This decision: Different mailing results for different documents or claims in one decision

Held the insurer's proof established a standard office practice ensuring its denials were properly addressed and mailed, and timely denial of one claim, but a triable issue existed on the other claim given conflicting sent and received dates of the bill.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.

Lack of medical necessity

Open the full map

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

This decision: Insurer's proof was enough to defeat the provider's motion but not to win

Held the insurer's two affirmed peer reviews set forth a factual basis and medical rationale and sufficiently rebutted the provider's letter of medical necessity, creating an issue of fact that defeated the provider's motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Cited by

A label shows how the later decision treated this one.

Bento Ortho, Inc. v Victoria Ins. Group (2019 NY Slip Op 51613(U)) FollowedThe parties' conflicting bill mailing and receipt dates raised a factual issue over whether the insurer timely denied the claims.
TAM Med. Supply Corp. v Country Wide Ins. Co. (2017 NY Slip Op 50921(U))The insurer's conflicting claim-receipt dates prevented summary judgment on late accident notice, but the provider was compelled to give discovery.

Similar decisions

Radiology Imaging of Queens v Progressive Ins. (2011 NY Slip Op 51860(U))The insurer's unopposed peer review and timely denial established entitlement to dismissal for lack of medical necessity.
Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity.
Complete Radiology, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50419(U))The treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50293(U))The insurer failed to establish timely denials because it mailed them more than 30 days after receiving the claims without proving tolling.
Radiology Today, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52452(U))The provider's action was premature because requested MRI films remained outstanding after timely verification requests.