October 12, 2011

Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51859(U))

https://www.beynensonlaw.com/case-law/crotona-hgts-med-p-c-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op51859u/

Court: Appellate Term, Second Department
Decided: October 12, 2011
Citation: 2011 NY Slip Op 51859(U) · 33 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co., 33 Misc 3d 129(A), 2011 NY Slip Op 51859(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 proved lack of medical necessity for seven claims but failed to establish defenses to the remaining two. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the first through fifth, eighth, and ninth causes of action on the insurer's summary judgment cross motion. Unrebutted affirmed IME and peer review reports supplied factual bases and medical rationales, and timely denials were established. Dismissal remained denied for the sixth cause of action because its denial did not assert medical necessity, that defense was not shown to be preserved, and the stated defense was not established. For the seventh cause of action, concerning an office visit, the insurer failed to substantiate its asserted reduced reimbursement rate.

Reported in New York Official Reports at Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51859(U))

[*1]

Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 51859(U) [33 Misc 3d 129(A)]

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-2322 K C.

Crotona Heights Medical, P.C. as Assignee of EDUARDO COLON, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 30, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking to dismiss the first, second, third, fourth, fifth, eighth and ninth causes of action are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from the denial of its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant’s litigation examiner in support of defendant’s cross motion was sufficient to establish that defendant had timely denied each of the claims (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 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the claims at issue in the first through fifth causes of action, which were denied on the ground of lack of medical necessity, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for those services. With respect to the claims at issue in the eighth and ninth causes of action, defendant submitted affirmed peer review reports which similarly provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for those services. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant [*2]was entitled to summary judgment dismissing causes of action one through five, eight
and nine (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Contrary to defendant’s contention on appeal, the claim at issue in the sixth cause of action was not denied based upon medical necessity. Since defendant failed
to demonstrate that the medical necessity defense was preserved as to this claim, and further failed to establish the defense actually set forth in the denial of claim form, the branch of defendant’s cross motion seeking the dismissal of this cause of action was properly denied. Furthermore, defendant did not proffer sufficient evidence to warrant the dismissal of the claim underlying the seventh cause of action, for an office visit. While defendant asserts that its partial payment was made at the proper, although reduced, rate, defendant failed to substantiate this assertion (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking to dismiss the first, second, third, fourth, fifth, eighth and ninth causes of action are granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011

Legal questions (3)

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

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 established lack of medical necessity and the provider failed to rebut it

Held the affirmed IME and peer review reports set forth a factual basis and medical rationale for lack of medical necessity, and because the provider did not rebut them the insurer was granted summary judgment on those claims.

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

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

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: 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 litigation examiner's affidavit sufficient to establish that the insurer timely denied each claim, citing the standard-office-practice mailing rule.

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

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.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer not entitled to dismissal of the office-visit claim because it failed to substantiate its assertion that its reduced partial payment was made at the proper fee schedule rate.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itDistinguished or limited

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) Contrasted (cf., but see)The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Similar decisions

Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews.
Crotona Hgts. Med., P.C. v GEICO Ins. Co. (2009 NY Slip Op 52466(U))The insurer's unrebutted peer review established lack of medical necessity for the provider's third and fourth causes of action.
Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others.