July 13, 2012

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))

https://www.beynensonlaw.com/case-law/midtown-med-assoc-p-c-v-clarendon-natl-ins-co-2012-ny-slip-op51351u/

Court: Appellate Term, Second Department
Decided: July 13, 2012
Citation: 2012 NY Slip Op 51351(U) · 36 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 36 Misc 3d 135(A), 2012 NY Slip Op 51351(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services. A cashed check proved payment in full, which the provider did not dispute. Three claims were submitted more than 45 days after services, contrary to 11 NYCRR 65-1.1; their denials offered an opportunity to justify lateness under 11 NYCRR 65-3.3 (e), but the provider supplied no justification. Two affirmed IME reports provided a factual basis and medical rationale for denying the remaining services, and the provider's doctor's affidavit did not meaningfully rebut them. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))

[*1]

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 51351(U) [36 Misc 3d 135(A)]

Decided on July 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1198 RI C.

Midtown Medical Associates, P.C. as Assignee of SIMEON JOHNSON, Respondent, —
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 24, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that the denial of claim forms had been timely
mailed (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]). Furthermore, defendant demonstrated that one of the claims at issue, [*2]for dates of service June 6, 2006 through June 12, 2006, had been paid in full, as a copy of the cashed check was annexed to its motion. Plaintiff failed to dispute this payment in its opposition papers. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted.

Defendant also demonstrated that plaintiff had submitted three of the claims at issue, for dates of service July 16, 2007 through July 18, 2007, September 28, 2007, and June 3, 2008 through June 19, 2008, more than 45 days after the dates that the services had been rendered, in violation of Insurance Department Regulations (11 NYCRR) § 65-1.1. Moreover, the denial of claim forms pertaining to these three claims advised plaintiff that the late submission of the claims would be excused if plaintiff provided a reasonable justification for their lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), which plaintiff failed to do. Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these three claims should also have been granted (see Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50417[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Finally, in support of its motion, defendant submitted two affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the remaining services rendered by plaintiff. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see High Quality Med., P.C. v GEICO Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52373[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims should also have been granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 13, 2012

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held two affirmed IME reports set forth a factual basis and medical rationale for lack of necessity of the remaining services, and the provider's doctor's affidavit failed to meaningfully refer to, let alone rebut, them.

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.

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 affidavit sufficient to establish that its denial of claim forms had been timely mailed.

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

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe 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) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50417(U)) FollowedThe assignor was ineligible for coverage because the assignor did not regularly reside with the insured when the accident occurred.
High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U)) FollowedThe insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Cited by

A label shows how the later decision treated this one.

New York Med. & Diagnostic Ctr. v GEICO Ins. Co. (2021 NY Slip Op 51138(U)) FollowedThe insurer established untimely submission of five claims but failed to prove its fee-schedule defense to the remaining claim.

Similar decisions

Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion.
Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews.
Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
North Bronx Med. Health Care v NY Cent. Mut. Ins. Co. (2012 NY Slip Op 51658(U))The provider's medical affirmation failed to rebut the insurer's IME and peer review conclusions that the disputed services were unnecessary.