December 19, 2017

Jamaica Dedicated Med. Care, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51790(U))

https://www.beynensonlaw.com/case-law/jamaica-dedicated-med-care-p-c-v-tri-state-consumer-ins-co-2017-ny-slip-op51790u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51790(U) · 58 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Jamaica Dedicated Med. Care, P.C. v Tri State Consumer Ins. Co., 58 Misc 3d 133(A), 2017 NY Slip Op 51790(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 cross motion failed because medical necessity was triable and its fee schedule defense was unproved. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying dismissal of the assigned no-fault complaint. It agreed with the Civil Court on medical necessity, citing Zuckerman v City of New York, and found the fee schedule defense unestablished under Rogy Med., P.C. v Mercury Cas. Co.

Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51790(U))

[*1]

Jamaica Dedicated Med. Care, P.C. v Tri State Consumer Ins. Co.

2017 NY Slip Op 51790(U) [58 Misc 3d 133(A)]

Decided on December 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 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
2011-192 K C

Jamaica Dedicated Medical Care, P.C., as Assignee of Cecilio Delrosario, Stewart Delrosario, Carmen Flores and Stephany Tavarez, Respondent,
against
Tri State Consumer Ins. Co., Appellant.

Thomas Torto, Esq., for appellant. Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 15, 2010. The order, insofar as appealed from, denied defendant’s cross 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 cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based upon its assertions that it had properly reimbursed plaintiff for some of the services at issue in accordance with the workers’ compensation fee schedule and that it had timely denied reimbursement for the remaining services at issue due to a lack of medical necessity.

Upon a review of the record, we agree with the Civil Court’s determination that, as to the claims that were denied based upon a lack of medical necessity, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). As to the claims that were denied on the ground that they had been properly paid pursuant to the workers’ compensation fee schedule, defendant failed to establish that defense as a matter of law (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

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 19, 2017

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

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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)

Agreed that a triable issue of fact existed regarding medical necessity for the claims denied on that ground, so the insurer's cross motion was properly denied.

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

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial

Held the insurer failed to establish as a matter of law its defense that it had properly paid some of the services under the workers' compensation fee schedule, so its cross motion was properly denied as to those claims.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Similar decisions

Jamaica Dedicated Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51493(U))The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied.
Jamaica Dedicated Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50752(U))The insurer's affidavit omitted claims in the complaint and failed to substantiate its fee-schedule defense, defeating summary judgment.
Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50259(U))The provider failed to rebut the insurer's IME report establishing lack of medical necessity for the services rendered.
Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50760(U))The provider's doctor's affirmation failed to rebut the insurer's peer review establishing lack of medical necessity for the equipment.
Jamaica Med. Plaza, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50475(U))The insurer was entitled to a provider deposition material and necessary to its defense, but factual disputes barred summary judgment.