December 1, 2009

Innovative Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52447(U))

https://www.beynensonlaw.com/case-law/innovative-chiropractic-p-c-v-travelers-ins-co-2009-ny-slip-op52447u/

Court: Appellate Term, Second Department
Decided: December 1, 2009
Citation: 2009 NY Slip Op 52447(U) · 25 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140(A), 2009 NY Slip Op 52447(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 treating chiropractor's conclusory affidavit failed to rebut the insurer's peer review on the provider's fifth cause of action. The Appellate Term, Second Department, modified the order to grant the insurer's summary judgment cross motion dismissing that cause, while affirming denial of dismissal of the fourth cause. For the fifth cause, affidavits established timely mailing of the denial through standard office procedures, preserving the medical necessity defense. The reviewing chiropractor's affidavit and report established lack of medical necessity, while the treating chiropractor supplied no facts supporting the contrary conclusion. For the fourth cause, the insurer failed to establish a timely denial, so summary judgment dismissing that claim remained denied.

Reported in New York Official Reports at Innovative Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52447(U))

[*1]

Innovative Chiropractic, P.C. v Travelers Ins. Co.

2009 NY Slip Op 52447(U) [25 Misc 3d 140(A)]

Decided on December 1, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2008-1919 Q C.

Innovative Chiropractic, P.C. a/a/o JOSE OVALLES, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 5, 2008. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing plaintiff’s fourth and fifth causes of action.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action is granted; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly denied its cross motion for summary judgment dismissing the fourth and fifth causes of action. The Civil Court held that an issue of fact exists as to the medical necessity of the services which are the subject of said causes of action.

The affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim form, which denied the claim seeking to recover the sum of $425.44 (plaintiff’s fifth cause of action) on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, with respect to said claim, defendant was not precluded from asserting its defense of lack of medical necessity.

In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

With respect to plaintiff’s fourth cause of action seeking to recover the sum of $134.80 for services rendered from April 5 to April 17, 2006, defendant failed to establish that it had timely denied said claim. Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fourth cause of action was properly denied.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009

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.

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: Different mailing results for different documents or claims in one decision

Held the insurer's affidavits proved timely mailing of the denial of one claim under its standard office practice, so it was not precluded there, but it failed to establish timely denial of the other claim, which stayed in the case.

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

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 chiropractor's affidavit and peer review established lack of medical necessity, and the treating chiropractor's affidavit merely asserting necessity without supporting facts raised no triable issue.

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. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

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.
Bronze Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51219(U)) FollowedThe insurer established lack of medical necessity, and the treating acupuncturist's unsupported disagreement failed to raise a factual issue.
Continental Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50234(U)) FollowedThe provider waived its objection to the chiropractor's affirmed IME report by failing to raise the defect in Civil Court.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526) FollowedThe provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Cited by

A label shows how the later decision treated this one.

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U)) FollowedThe provider's unsworn medical report failed to rebut the insurer's showing that the medical supplies were unnecessary.

Similar decisions

Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50884(U))The treating doctor's conclusory reaffirmation of medical necessity failed to rebut the insurer's sworn peer review and IME reports.
AJS Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52446(U))The insurer's unrebutted chiropractic peer review established lack of medical necessity for the provider's first cause of action.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.