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November 30, 2015

Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U))

https://www.beynensonlaw.com/case-law/dayan-v-allstate-ins-co-2015-ny-slip-op-51751u/

Court
Appellate Term, Second Department
Decided
November 30, 2015
Citation
2015 NY Slip Op 51751(U)
Posture
Trial
Later treatment
Distinguished in 1, contrasted (cf., but see) in 1 and followed in 6 later decisions (see Cited by)
Issues
Medical necessity Trial and evidence
Legal questions
Lack of medical necessity (see the maps)
Cite as
Dayan v Allstate Ins. Co., 2015 NY Slip Op 51751(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

A provider bears the ultimate burden of proving medical necessity after the insurer rebuts the claim form's presumption at trial. The disputed issue was whether the injury requiring shoulder surgery was causally related to the accident. The Civil Court placed the ultimate burden on the insurer and awarded judgment to the provider. Following Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., once the insurer demonstrates lack of medical necessity, the provider must establish necessity by a preponderance of the evidence, consistent with recovery of necessary expenses under 11 NYCRR 65-1.1 (c). Because the judgment might reflect an incorrect allocation of that burden, the Appellate Term, Second Department, reversed and remitted for a new trial.

Reported in New York Official Reports at Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U))

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

Alan J. Dayan, M.D. as Assignee of Zaur Yevdeyev, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 16, 2014. The judgment, entered pursuant to a decision of the same court dated August 19, 2013, after a nonjury trial, awarded plaintiff the principal sum of $8,939.66.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court stated that it found that plaintiff had established its prima facie case and that defendant had timely denied the claim. Furthermore, the court stated: “That shifts the burden to the Defendant to demonstrate the lack of medical necessity for the services in question.” In its decision after trial, the court stated that the necessity of the assignor’s right-shoulder surgery was not in question, and that the burden was on defendant to demonstrate that the injuries requiring the surgery were not related to the subject accident. The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66. Defendant appeals from the decision. A judgment was subsequently entered on April 16, 2014. On the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]).

It is well settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary” (Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 n [App Term, 2d, 11th & 13th Jud Dists 2012]). Indeed, we view this as being no different from when an insurer, who has preserved such a defense by a timely denial, presents sufficient proof at trial that the billed-for services were not actually rendered or that the durable medical equipment was not provided, thereby shifting the burden back to the plaintiff provider to ultimately establish that it is seeking to recover for “necessary expenses” which were actually incurred (see 11 NYCRR 65-1.1 [c]). Thus, we hold that the Civil Court erred in ruling that defendant bore the ultimate burden of proof. As a result, since the decision in favor of plaintiff may have been the product of the court’s incorrect application of the burden of proof, a new trial is required.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Weston, J.P., Aliotta and Elliot, JJ., concur.


Decision Date: November 30, 2015

Legal questions

A question 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: Trial ruling on burden or admissibility of the insurer's proof; matter sent back without a finding

Held the trial court erred in placing the ultimate burden on the insurer; once the insurer meets its burden showing lack of necessity, including no causal relation to the accident, the provider must prove necessity by a preponderance, so a new trial was ordered.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 521
  • Trial courtsTrial 87
2022, Appellate Division: 2 decisions (2 Insurer's proof insufficient)2020, Appellate Division: 1 decision (1 Provider's rebuttal sufficient)2019, Appellate Division: 1 decision (1 Insurer's proof insufficient)2016, Appellate Division: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2008, Appellate Division: 1 decision (1 Insurer's proof insufficient)2007, Appellate Division: 2 decisions (2 Insurer raised triable issue)2023, Appellate Term: 1 decision (1 Provider's rebuttal sufficient)2022, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2020, Appellate Term: 5 decisions (1 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 1 Trial error, new trial)2019, Appellate Term: 15 decisions (8 Unrebutted, insurer prevails, 4 Insurer's proof insufficient, 3 Trial error, new trial)2018, Appellate Term: 13 decisions (7 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 4 Trial error, new trial)2017, Appellate Term: 20 decisions (5 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 7 Trial error, new trial)2016, Appellate Term: 28 decisions (16 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 3 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 22 decisions (9 Unrebutted, insurer prevails, 9 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2014, Appellate Term: 40 decisions (16 Unrebutted, insurer prevails, 22 Provider's rebuttal sufficient, 1 Insurer's proof insufficient, 1 Trial error, new trial)2013, Appellate Term: 57 decisions (40 Unrebutted, insurer prevails, 12 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2012, Appellate Term: 76 decisions (54 Unrebutted, insurer prevails, 10 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 5 Insurer's proof insufficient, 5 Trial error, new trial)2011, Appellate Term: 56 decisions (42 Unrebutted, insurer prevails, 6 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 2 Insurer's proof insufficient, 4 Trial error, new trial)2010, Appellate Term: 66 decisions (50 Unrebutted, insurer prevails, 5 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 2 Insurer's proof insufficient)2009, Appellate Term: 32 decisions (17 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 4 Insurer's proof insufficient)2008, Appellate Term: 29 decisions (14 Unrebutted, insurer prevails, 9 Insurer raised triable issue, 6 Insurer's proof insufficient)2007, Appellate Term: 9 decisions (3 Unrebutted, insurer prevails, 3 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2006, Appellate Term: 20 decisions (1 Unrebutted, insurer prevails, 11 Insurer raised triable issue, 8 Insurer's proof insufficient)2005, Appellate Term: 16 decisions (6 Insurer raised triable issue, 10 Insurer's proof insufficient)2004, Appellate Term: 10 decisions (1 Insurer raised triable issue, 9 Insurer's proof insufficient)2003, Appellate Term: 1 decision (1 Insurer raised triable issue)2022, Trial courts: 6 decisions (4 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2021, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2017, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2015, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2014, Trial courts: 3 decisions (2 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2013, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Trial error, new trial)2012, Trial courts: 7 decisions (4 Unrebutted, insurer prevails, 3 Insurer's proof insufficient)2011, Trial courts: 4 decisions (4 Insurer's proof insufficient)2010, Trial courts: 10 decisions (2 Unrebutted, insurer prevails, 7 Insurer's proof insufficient, 1 Trial error, new trial)2009, Trial courts: 5 decisions (2 Unrebutted, insurer prevails, 2 Insurer raised triable issue, 1 Insurer's proof insufficient)2008, Trial courts: 11 decisions (6 Unrebutted, insurer prevails, 5 Insurer's proof insufficient)2007, Trial courts: 5 decisions (1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2006, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2005, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2004, Trial courts: 8 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 5 Insurer's proof insufficient, 1 Trial error, new trial)2003, Trial courts: 1 decision (1 Insurer's proof insufficient)2026, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2025, Trial courts: 1 decision (1 Unrebutted, insurer prevails)This decision
20052010201520202025
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, 32 (this one included) are in the same category.

Cited in this decision

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

  • Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
  • Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.

Cited by (16)

A label shows how the later decision treated this one.

  • American Tr. Ins. Co. v PDA NY Chiropractic, P.C. (2023 NY Slip Op 50938(U)) DistinguishedA provider's substantial compliance with reasonable additional verification requests does not make its claims payable.
  • Matter of American Tr. Ins. Co. v Heyligers (2026 NY Slip Op 04363) Contrasted (cf., but see)The insurer failed to undermine the arbitrators' conclusions on the IME cut-off date and verification tolling.
  • Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co. (2017 NY Slip Op 50937(U)) FollowedThe provider failed to prove that spinal surgery was medically necessary after the insurer rebutted the presumption of necessity.
  • Mathews v Allstate Ins. (2016 NY Slip Op 51174(U)) FollowedAn objection that the insurer's medical expert is not an orthopedic surgeon goes to the weight, rather than admissibility, of testimony.
  • Comprehensive Psychological Servs. of NY, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51815(U)) FollowedThe provider failed to prove medical necessity after the insurer's expert testimony shifted the burden at trial.
  • Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U)) FollowedThe insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.
  • SB Chiropractic, P.C. v GEICO Ins. Co. (2022 NY Slip Op 50316(U)) FollowedThe insurer established timely denials, proper fee-schedule reductions and lack of medical necessity for post-IME treatment.
  • American Tr. Ins. Co. v Mark S. McMahon MD, P.C. (2022 NY Slip Op 50716(U)) FollowedA master arbitrator may not reweigh evidence or resolve credibility disputes anew in reviewing a no-fault award.
  • American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.
  • Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))An insurer may present substitute expert testimony on medical necessity without admitting the peer review report for its truth.
Show all 16 citing decisions
  • American Tr. Ins. Co. v NextStep Healing, Inc. (2023 NY Slip Op 50521(U))
  • American Tr. Ins. Co. v Ortho City Servs. Inc. (2023 NY Slip Op 50527(U))
  • American Tr. Ins. Co. v Rutland Med., PC (2023 NY Slip Op 50814(U))
  • Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))
  • American Tr. Ins. Co. v Nexray Med. Imaging PC (2023 NY Slip Op 50506(U))
  • James J. Kim, L.A.C., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50587(U))

Similar decisions

  • Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action.
  • Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
  • DJS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51123(U))A trial decision controls over an inconsistent judgment, and the discrepancy may be corrected on appeal under CPLR 5019 (a).
  • Healthplus Surgery Ctr., LLC v American Tr. Ins. Co. (2022 NY Slip Op 02252)The insurer proved fee-schedule overbilling but failed to support its medical-necessity defense with a factual basis and medical rationale.
  • Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U))An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.
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