March 20, 2013
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50454(U))
https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-geico-gen-ins-co-2013-ny-slipop-50454u/
- Court
- Appellate Term, Second Department
- Decided
- March 20, 2013
- Citation
- 2013 NY Slip Op 50454(U) · 39 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Claimant's prima facie case on motions · Lack of medical necessity · Proof of mailing (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 Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50454(U))
| Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. |
| 2013 NY Slip Op 50454(U) [39 Misc 3d 129(A)] |
| Decided on March 20, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-831 K C.
against
GEICO General Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 30, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered to assignor Jeannette Lugaro is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
In its respondent’s brief, defendant concedes that it was not entitled to summary judgment [*2]dismissing so much of the complaint as sought to recover upon a claim for services rendered to Jeannette Lugaro because defendant failed to annex a copy of the peer review report pertaining to such services. However, plaintiff is not entitled to summary judgment upon this claim because plaintiff failed to demonstrate that defendant’s denial of this claim was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
With respect to the remaining claims, for services rendered to assignors Boris Gurevich, Isabel Guaraca and Lydia Best, the affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]) these claims. Defendant annexed to its cross motion papers sworn peer review reports, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services rendered to these three assignors. As defendant’s prima facie showing was unrebutted by plaintiff, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims of these three assignors were properly granted (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 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]).
Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered to assignor Jeannette Lugaro is denied.
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 20, 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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider was not entitled to summary judgment on the Lugaro claim because it failed to show that the insurer's denial was conclusory, vague or without merit as a matter of law.
Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 246 (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 sworn peer reviews setting out a factual basis and medical rationale established lack of medical necessity for three assignors' services, and the provider offered no rebuttal, so dismissal was proper.
Of the 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.
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 affidavit established timely denial of the three remaining claims, as a predicate to dismissing them on the unrebutted peer reviews.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An 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))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 American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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 Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action.
- Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
- Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2010 NY Slip Op 50991(U))Denial forms offered to show that claims were denied, rather than to prove their contents, need not qualify as business records.