August 23, 2012

Neomy Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51638(U))

https://www.beynensonlaw.com/case-law/neomy-med-p-c-v-geico-ins-co-2012-ny-slip-op-51638u/

Court: Appellate Term, Second Department
Decided: August 23, 2012
Citation: 2012 NY Slip Op 51638(U) · 36 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Neomy Med., P.C. v GEICO Ins. Co., 36 Misc 3d 147(A), 2012 NY Slip Op 51638(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 provider's doctor's affidavit raised a triable issue of medical necessity in response to the insurer's peer review report. The insurer cross-moved for summary judgment dismissing the provider's action for assigned no-fault benefits. Its affirmed peer review report supplied a factual basis and medical rationale for the opinion that the services lacked medical necessity. The provider's opposing affidavit sufficiently demonstrated a factual dispute, requiring denial of the cross motion under Zuckerman v City of New York. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.

Reported in New York Official Reports at Neomy Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51638(U))

[*1]

Neomy Med., P.C. v GEICO Ins. Co.

2012 NY Slip Op 51638(U) [36 Misc 3d 147(A)]

Decided on August 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1609 K C.

Neomy Medical, P.C. as Assignee of ALESYA DRAGANCHYUK, Respondent, – –
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 17, 2009. 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, without 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.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that there was a lack of medical necessity for the services at issue. In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the existence of a triable issue of fact as to the medical necessity of the services in question, [*2]defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J. Weston and Rios, JJ., concur.
Decision Date: August 23, 2012

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

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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)

Affirmed denial of the insurer's cross motion: its affirmed peer review set forth a factual basis and medical rationale, but the provider's doctor's affidavit raised a question of fact as to medical necessity.

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

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

Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U)) FollowedThe insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U)) FollowedThe provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.

Similar decisions

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.
Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))The provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact.
Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U))The provider's physician failed to rebut the insurer's peer review because the affidavit did not specifically justify the additional studies.
New Life Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51061(U))The provider's practitioner failed to meaningfully rebut two peer review reports establishing lack of medical necessity.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.