May 26, 2023

James J. Kim, L.A.C., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50587(U))

https://www.beynensonlaw.com/case-law/james-j-kim-l-a-c-p-c-v-allstate-ins-co-2023-ny-slip-op50587u/

Court: Appellate Term, Second Department
Decided: May 26, 2023
Citation: 2023 NY Slip Op 50587(U)
Posture: Trial
Outcome: Provider prevailed
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

James J. Kim, L.A.C., P.C. v Allstate Ins. Co., 2023 NY Slip Op 50587(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023)

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.

A provider bears the ultimate burden of proving medical necessity by a preponderance of the evidence at a no-fault trial. The insurer first must rebut the presumption of medical necessity attaching to the claim form. Medical necessity was the sole issue stipulated for the nonjury trial. The Appellate Term, Second Department, affirmed the judgment for the provider because the record supported the Civil Court's assessment of the expert witnesses' credibility and the trial proof. Although appellate fact-review authority was as broad as the trial court's, credibility findings received substantial deference because the trial court observed the witnesses.

Reported in New York Official Reports at James J. Kim, L.A.C., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50587(U))

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

James J. Kim, L.A.C., P.C., as Assignee of Rick Greengus, Respondent,
against
Allstate Insurance Company, Appellant.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. Lewin & Baglio, LLP (Michael Nathan and William Benson of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated August 1, 2022, deemed from a judgment of that court entered October 24, 2022 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,018.77.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,018.77. At the outset of the trial, the parties stipulated that the sole issue for trial was whether the services at issue were medically necessary.

In a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan [*2]v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the record supports the determination of the Civil Court that, based upon its assessment of the credibility of the expert witnesses and the proof adduced at trial, plaintiff sufficiently established by a preponderance of the evidence that the services at issue were medically necessary. Consequently, we find no basis to disturb the Civil Court’s findings.

Accordingly, the judgment is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 26, 2023

Legal questions

A question 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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Affirmed judgment after trial for the provider because, crediting its expert over the insurer's, the record supported the finding that the provider proved medical necessity by a preponderance of the evidence.

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.

Cited in this decision

Radiology Today, P.C. v Geico Ins. Co. (2017 NY Slip Op 51768(U))An insurer may present substitute expert testimony on medical necessity without admitting the peer review report for its truth.
Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U))A provider bears the ultimate burden of proving medical necessity after the insurer rebuts the claim form's presumption at trial.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200)Medical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.

Similar decisions

Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action.
Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form.
Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.
Webster Ave Med. Pavilion, PC v Allstate Ins. Co. (2014 NY Slip Op 50393(U))The insurer's unopposed expert testimony failed to establish that the provider's diagnostic testing lacked medical necessity.