December 17, 2014

Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))

https://www.beynensonlaw.com/case-law/medical-assoc-p-c-v-geico-gen-ins-co-2014-ny-slip-op51829u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51829(U) · 46 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Medical Assoc., P.C. v Geico Gen. Ins. Co., 46 Misc 3d 131(A), 2014 NY Slip Op 51829(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, modified the order accordingly and affirmed denial of the insurer's cross motion. The insurer established a timely medical necessity denial, but the court's review of the record disclosed a factual issue concerning the services.

Reported in New York Official Reports at Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))

[*1]

Medical Assoc., P.C. v Geico Gen. Ins. Co.

2014 NY Slip Op 51829(U) [46 Misc 3d 131(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2000 K C

Medical Associates, P.C. as Assignee of DMITRY KHAIMOV, Respondent,
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for

summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s moving papers established that defendant had timely denied the claim at issue (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]) based on a lack of medical necessity. However, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

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

Decision Date: December 17, 2014

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)

Found a triable issue of fact on medical necessity on the record, so the insurer's cross motion stayed denied and the provider's summary judgment was vacated.

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.

Proof of mailing

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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 moving papers established timely denial of the claim, citing the standard-office-practice mailing rule.

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

Cited in this decision

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.

Similar decisions

Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))The provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51270(U))The insurer's summary judgment cross motion based on lack of medical necessity remained denied on appeal.
Medical Assoc., P.C. v Unitrin Advantage Ins. Co. (2013 NY Slip Op 50757(U))The provider's medical affirmations raised factual issues concerning MRI necessity, requiring denial of both sides' summary judgment requests.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.