June 6, 2016

Kanter v Mercury Cas. Co. (2016 NY Slip Op 50908(U))

https://www.beynensonlaw.com/case-law/kanter-v-mercury-cas-co-2016-ny-slip-op-50908u/

Court: Appellate Term, Second Department
Decided: June 6, 2016
Citation: 2016 NY Slip Op 50908(U) · 52 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity (see the maps)

Cite as

Kanter v Mercury Cas. Co., 52 Misc 3d 127(A), 2016 NY Slip Op 50908(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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.

Conflicting expert opinions defeated the insurer's medical-necessity summary judgment motion, but a provider examination was warranted. The Civil Court denied both parties' summary judgment motions and limited trial issues under CPLR 3212 (g) to medical necessity. On the insurer's appeal, the competing expert opinions raised a triable issue concerning the services, precluding dismissal. The insurer nevertheless established service of a notice for an examination before trial, which was material and necessary to its defense under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the branch compelling the provider's examination and otherwise affirmed. The provider defeated dismissal, while the insurer obtained discovery.

Reported in New York Official Reports at Kanter v Mercury Cas. Co. (2016 NY Slip Op 50908(U))

[*1]

Kanter v Mercury Cas. Co.

2016 NY Slip Op 50908(U) [52 Misc 3d 127(A)]

Decided on June 6, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1574 Q C

Miriam Kanter, M.D., P.C., Doing Business as AVENUE MEDICAL, as Assignee of JASMATTIE PASRAM, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 2, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment. The Civil Court denied both motions, but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to defendant’s defense of lack of medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

Contrary to defendant’s contention, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity, and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2016

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)

Upheld denial of the insurer's summary judgment motion because the parties' conflicting medical expert opinions raised a triable issue of fact as to medical necessity.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 612 decisions on this question in the Second Department courts and the Court of Appeals, 95 (this one included) are in the same category.

Cited in this decision

Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350)A timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.

Similar decisions

Duke Acupuncture, P.C. v Mercury Cas. Co. (2015 NY Slip Op 51701(U))Conflicting expert opinions defeated the insurer's medical-necessity summary judgment motion, but a provider deposition was warranted.
New York Community Hosp. of Brooklyn v Mercury Cas. Co. (2016 NY Slip Op 50900(U))The insurer's medical-necessity summary judgment motion was premature pending disclosure, but it was entitled to examine the provider.
Throgs Neck Multicare, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51081(U))The provider's treating doctor's affirmation raised a triable issue of medical necessity by sufficiently rebutting the insurer's IME report.
Raymond Cecora, P.T., P.C. v Mercury Cas. Co. (2016 NY Slip Op 50930(U))The provider failed to rebut an affirmed IME report establishing a factual basis and medical rationale for lack of medical necessity.
Raymond Semente, D.C., P.C. v Mercury Cas. Co. (2016 NY Slip Op 50861(U))The provider failed to rebut an IME report establishing a factual basis and medical rationale for ending further treatment.