July 26, 2006

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51557(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-geico-ins-co-2006-ny-slip-op-51557u/

Court: Appellate Term, Second Department
Decided: July 26, 2006
Citation: 2006 NY Slip Op 51557(U) · 12 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Distinguished in 1 later decision (see Cited by)
Issues: Medical necessity Timeliness and preclusion Provider's prima facie case
Legal questions: Proof of mailing · Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 12 Misc 3d 147(A), 2006 NY Slip Op 51557(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2006)

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 timely denials and reasoned peer reviews raised triable issues of medical necessity. Although the motion court found the provider's prima facie showing deficient, its supporting affidavit permitted consideration of the attached claim forms, mailing receipts, denials acknowledging receipt, and other documents. Those submissions established entitlement under Insurance Law § 5106 (a), shifting the burden to the insurer. The claims examiner's affidavit established timely denial mailing through routine office practices, and the affirmed peer reviews supplied factual bases and medical rationales for their conclusions. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion because the insurer's evidence raised triable issues.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51557(U))

[*1]

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co.

2006 NY Slip Op 51557(U) [12 Misc 3d 147(A)]

Decided on July 26, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1463 N C.

Delta Diagnostic Radiology, P.C. A/A/O MARILYN RIVIERE, Appellant,
against
GEICO Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Sandra K. Pardes, J.), entered March 22, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment,
which motion defendant opposed. By order entered April 4, 2005, the court below denied plaintiff’s motion on the ground that it failed to establish its prima facie entitlement to judgment, and awarded defendant $50 in costs. The instant appeal by plaintiff ensued.

Contrary to the determination of the court below, the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms, mailing receipts, denials (indicating that defendant received the claims) and other documents to be considered by the court. Consequently, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App [*2]Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims examiner established that the denials were timely mailed to plaintiff pursuant to defendant’s “routine office practice and procedures.” In addition, the affirmed peer review reports defendant annexed to its opposition papers present factual bases and medical rationales for the peer reviewers’ opinions and, therefore, raise triable issues of fact as to medical necessity (see e.g. A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs pursuant to UDCA 1906 (a).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 26, 2006

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.

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

Held the claims examiner's affidavit established that the denials were timely mailed pursuant to the insurer's routine office practice and procedures, rejecting the provider's contrary contention.

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.

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 was enough to defeat the provider's motion but not to win

Held the insurer's affirmed peer review reports set out factual bases and medical rationales, raising triable issues of fact as to medical necessity and defeating the provider's motion.

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, 67 (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)

Held, contrary to the lower court, that the provider's affidavit sufficed to admit its claim forms, mailing receipts and denials showing receipt, so it established its prima facie case.

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

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.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194) FollowedAn insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
Damadian Mri In Elmhurst v Liberty Mut. Ins. Co. (2003 NY Slip Op 51700(U)) FollowedA provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense.
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.

Cited by

A label shows how the later decision treated this one.

Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) DistinguishedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 52034(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U))The insurer raised a triable issue of medical necessity through detailed peer reviews and timely denials following verification.
Delta Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52370(U))The insurer's denial and affirmed peer-review report adequately stated the medical-necessity defense and raised a triable issue.
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.
Delta Diagnostic Radiology, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51345(U))The insurer's investigator affidavit raised a coverage issue concerning an alleged fraud scheme, but neither side was entitled to summary judgment.