October 12, 2011

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))

https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-clarendon-natl-ins-co-2011-ny-slip-op51858u/

Court: Appellate Term, Second Department
Decided: October 12, 2011
Citation: 2011 NY Slip Op 51858(U) · 33 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 129(A), 2011 NY Slip Op 51858(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim. The insurer proved timely mailing of its denial on that ground and submitted a peer review supplying a factual basis and medical rationale for the conclusion that the services were unnecessary. This established prima facie entitlement to summary judgment and shifted the burden to the provider, which failed to rebut the showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint; it reached no other issue, including the challenged finding under CPLR 3212 (g) that the provider had established its prima facie case.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))

[*1]

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co.

2011 NY Slip Op 51858(U) [33 Misc 3d 129(A)]

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-1148 K C.

Five Boro Psychological Services, P.C. as Assignee of LAURA PURNELL, Respondent,
against
Clarendon National Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 2, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, pursuant to CPLR 3212 (g), that plaintiff had “established its prima facie case.”

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint and as, upon denying plaintiff’s cross motion for summary judgment, found, pursuant to CPLR 3212 (g), that plaintiff had “established its prima facie case.”

Defendant established that it had timely mailed the denial of claim form (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]), which denied the claim on the ground of lack of medical necessity. In support of its motion, defendant submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, defendant established its prima facie entitlement to judgment as a matter of law (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op [*2]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]), thereby shifting the burden to plaintiff to rebut defendant’s showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; sect f1 Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant’s showing that the services were not medically necessary was unrebutted by plaintiff. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. We reach no other issue.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 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 proof established lack of medical necessity and the provider failed to rebut it

Held the sworn peer review set forth a factual basis and medical rationale, shifting the burden to the provider, whose failure to rebut it entitled the insurer to summary judgment.

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.

Proof of mailing

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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 established that it timely mailed the denial of claim form denying the claim for lack of medical necessity.

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.

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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
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.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U)) FollowedThe insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51704(U))The insurer established timely mailing of its denial and lack of medical necessity through an unrebutted sworn peer review report.
Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.