March 12, 2008
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50535(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-progressive-cas-ins-co-2008-ny-slip-op50535u/
- Decided
- March 12, 2008
- Citation
- 2008 NY Slip Op 50535(U) · 19 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50535(U))
| Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. |
| 2008 NY Slip Op 50535(U) [19 Misc 3d 130(A)] |
| Decided on March 12, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-59 K C.
against
Progressive Casualty Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion
for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by
an officer of plaintiff, and various documents annexed thereto. The affidavit executed by
plaintiff’s corporate officer stated in a conclusory manner that
the documents attached to plaintiff’s motion papers were plaintiff’s business records.
Defendant cross-moved for summary judgment on the ground of lack of medical necessity. The
court below denied plaintiff’s motion and granted defendant’s cross motion, finding that
defendant established its defense of lack of medical necessity. This appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.
There is no merit to plaintiff’s argument that defendant’s cross motion should have been denied because its NF-10 denial forms, which were based upon peer review reports, did not assert sufficient facts and a medical rationale based thereon to set forth the reason for the denials (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Further, the sworn [*2]papers submitted in support of defendant’s cross motion, including detailed peer review reports, established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant’s cross motion for summary judgment (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]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 12, 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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie case because its officer's conclusory affidavit did not show personal knowledge of the provider's practices sufficient to lay a business-records foundation for the annexed documents.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
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 insurer's sworn papers, including detailed peer review reports, established prima facie that the MRIs were not medically necessary, and being unrebutted entitled the insurer to summary judgment.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) FollowedAn insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
- 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.
Cited by
A label shows how the later decision treated this one.
- Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U)) FollowedThe insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary.
- Jesa Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 29386) FollowedThe physician's affirmation authenticated the electronic signature on the peer review, supporting the medical-necessity denial.
Similar decisions
- 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 Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
- Delta Diagnostic Radiology, P.C. v General Assur. Co. (2007 NY Slip Op 51616(U))The provider failed to establish a prima facie case because its corporate officer did not lay a foundation for the attached business records.
- 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 Unitrin Advantage Ins. Co. (2008 NY Slip Op 51854(U))The provider's officer failed to establish personal knowledge sufficient to lay a business-records foundation for summary judgment.