April 5, 2011

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))

https://www.beynensonlaw.com/case-law/devonshire-surgical-facility-v-american-tr-ins-co-2011-ny-slip-op50513u/

Court: Appellate Term, First Department
Decided: April 5, 2011
Citation: 2011 NY Slip Op 50513(U) · 31 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 129(A), 2011 NY Slip Op 50513(U) (App Term, 1st Dept 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's conclusory peer review report failed to raise a triable issue concerning medical necessity. Two providers established entitlement to summary judgment on their assigned no-fault claims under Insurance Law § 5106 (a). Even assuming that the insurer's denials were timely, the report lacked sufficient facts to support its medical necessity defense. The Appellate Term, First Department, reversed the order denying the providers' motion and granted summary judgment to the surgical facility and orthopedic services provider on their respective claims, directing entry of judgment.

Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))

[*1]

Devonshire Surgical Facility v American Tr. Ins. Co.

2011 NY Slip Op 50513(U) [31 Misc 3d 129(A)]

Decided on April 5, 2011

Appellate Term, First Department

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

As corrected in part through April 12, 2011; it will not be published in the printed Official Reports.

Decided on April 5, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570946/10.

Devonshire Surgical Facility, Carnegie Hill Orthopedic Services, P.C., and Allen C. Chamberlin a/a/o Maria Tapia, Plaintiffs-Appellants, – –
against
American Transit Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 5, 2008, which denied their motion for summary judgment in the principal sum of $9,902.18.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 5, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $6,902.18, and plaintiff Devonshire Surgical Facility in the principal sum of $3,000. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 05, 2011

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.

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Granted the providers summary judgment because the insurer's peer review report was conclusory and did not set forth sufficient facts to raise a triable issue on lack of medical necessity.

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 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

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 the providers established their prima facie entitlement to summary judgment on their claims, so the burden shifted to the insurer to raise a triable issue.

Proof sufficientMailing/receipt not shownOverdue not shownOther element missingThis decisionCites it or cited by itCited or followed

Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 45 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)The insurer's verified interrogatory answers established receipt and partial payment of the claims and defeated its proof-of-billing objection.
Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U))The providers established overdue claims, and the insurer's late denials and discovery preclusion left no triable issue.
East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50213(U)) FollowedThe provider obtained summary judgment on two claims because the insurer's peer review lacked an adequate factual basis and medical rationale.

Similar decisions

Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))The provider's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status.
Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52015(U))The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry.
Devonshire Surgical Facility v GEICO (2007 NY Slip Op 51308(U))The insurer raised licensing issues as to the surgical facility but was precluded from asserting fraudulent billing against the orthopedic provider.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U))The provider's physician failed to rebut the insurer's peer review because the affidavit did not specifically justify the additional studies.