December 8, 2017

Elena Ocher Med., P.C. v Infinity Ins. Co. (2017 NY Slip Op 51730(U))

https://www.beynensonlaw.com/case-law/elena-ocher-med-p-c-v-infinity-ins-co-2017-ny-slip-op-51730u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51730(U) · 58 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Elena Ocher Med., P.C. v Infinity Ins. Co., 58 Misc 3d 129(A), 2017 NY Slip Op 51730(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 summary judgment motion based on lack of medical necessity was denied because a triable factual issue remained. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's assigned no-fault benefits action, finding on review of the record a triable issue regarding the medical necessity of the services under Zuckerman v City of New York.

Reported in New York Official Reports at Elena Ocher Med., P.C. v Infinity Ins. Co. (2017 NY Slip Op 51730(U))

[*1]

Elena Ocher Med., P.C. v Infinity Ins. Co.

2017 NY Slip Op 51730(U) [58 Misc 3d 129(A)]

Decided on December 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2916 K C

Elena Ocher Medical, P.C., as Assignee of Sofia Fowlin, Respondent,
against
Infinity Insurance Company, Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint based upon a lack of medical necessity.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Affirmed denial of the insurer's motion for summary judgment based on lack of medical necessity because a triable issue of fact existed regarding the medical necessity of the services.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Similar decisions

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))The parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity.
Kensington Radiology Group, P.C. v National Am. Ins. Co. (2017 NY Slip Op 51811(U))The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact.
Neomy Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51638(U))The provider's doctor's affidavit raised a triable issue of medical necessity in response to the insurer's peer review report.
Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))The provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact.
Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))The insurer established that it had received no claims for the accident alleged in the complaint, and the provider failed to rebut that showing.