October 8, 2013

Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))

https://www.beynensonlaw.com/case-law/elite-med-ny-p-c-v-american-tr-ins-co-2013-ny-slip-op51738u/

Court: Appellate Term, Second Department
Decided: October 8, 2013
Citation: 2013 NY Slip Op 51738(U) · 41 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Verification requests Discovery and procedure
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Elite Med. NY, P.C. v American Tr. Ins. Co., 41 Misc 3d 130(A), 2013 NY Slip Op 51738(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature. The Appellate Term, Second Department, modified the order to grant the insurer's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's motion. Affirmed peer reviews supplied a factual basis and medical rationale, and the provider submitted no rebutting medical evidence. For the remaining claim, unrebutted affidavits established timely verification requests and follow-ups that remained unanswered when suit began, tolling the payment or denial period under 11 NYCRR 65-3.8 (a). The insurer avoided discovery preclusion by providing a reasonable law-office-failure excuse for its three-week delay in complying with a conditional discovery order and demonstrating meritorious defenses.

Reported in New York Official Reports at Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))

[*1]

Elite Med. NY, P.C. v American Tr. Ins. Co.

2013 NY Slip Op 51738(U) [41 Misc 3d 130(A)]

Decided on October 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-3269 K C.

Elite Medical NY, P.C. as Assignee of SHANEEK L. LEE, Respondent-Appellant, —
against
American Transit Insurance Co., Appellant-Respondent.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 26, 2011. The order, insofar as appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint. The order, insofar as cross-appealed from by plaintiff, denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, with $25 costs to defendant.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground, among others, that defendant was precluded from offering any evidence in support of its defenses because it had failed to timely comply with a so-ordered discovery stipulation. Defendant cross-moved for summary judgment dismissing the complaint on the grounds of lack of medical necessity and outstanding verification. The Civil Court denied both motions; found, among other things, that defendant had established timely denials of the claims at issue; and limited the trial to medical necessity. This appeal and cross appeal ensued.

Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.

As to two of the three claims at issue in this case, defendant submitted affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s [*2]determinations that there was a lack of medical necessity for the services. In opposition, plaintiff failed to submit any medical evidence to rebut the peer review reports. Since plaintiff has not challenged the Civil Court’s finding that, in effect, defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these two claims should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; 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]).

As to the remaining claim, the affidavits submitted by defendant were sufficient to establish that defendant had timely mailed requests and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to respond to the verification requests prior to the commencement of this action. Plaintiff offered no evidence in opposition. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing as premature so much of the complaint as sought to recover upon this claim should also have been granted, as defendant’s time to pay or deny the claim had not yet elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 2013

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.

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 proof established lack of medical necessity and the provider failed to rebut it

Held the affirmed peer review reports set forth a factual basis and medical rationale and the provider submitted no medical rebuttal, so the insurer was entitled to summary judgment on two claims.

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, 315 (this one included) are in the same category.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Timely requests went unanswered; the claim is not overdue and the action is premature

Held the insurer timely mailed verification and follow-up requests that the provider never answered before suit, so the time to pay or deny had not elapsed and the claim was dismissed as premature.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

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 (rules on the question, but another ground decided the case)

Held the insurer's affidavits sufficient to establish timely mailing of verification requests and follow-up requests for the remaining claim.

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.

Cited in this decision

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

Trimed Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 51880(U))The insurer established lack of medical necessity for three claims, but a factual issue remained over the fourth claim's late submission.
Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp. (2010 NY Slip Op 51722(U))The provider's complaint was properly struck for willful noncompliance with discovery orders after inadequate and unreasonable excuses.
Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U)) FollowedThe provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.
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.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038) FollowedThe hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.

Similar decisions

Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others.
Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.
Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 51603(U))The insurer established that two claims were premature for outstanding verification and a third lacked medical necessity.