November 19, 2015
New Quality Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51697(U))
https://www.beynensonlaw.com/case-law/new-quality-med-p-c-v-praetorian-ins-co-2015-ny-slip-op51697u/
- Decided
- November 19, 2015
- Citation
- 2015 NY Slip Op 51697(U) · 49 Misc 3d 147(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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.
Reported in New York Official Reports at New Quality Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51697(U))
| New Quality Med., P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 51697(U) [49 Misc 3d 147(A)] |
| Decided on November 19, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-693 Q C
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant’s defense of lack of medical necessity.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered February 7, 2013, insofar as appealed from and as limited by plaintiff’s brief, the Civil Court denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant’s defense of lack of medical necessity.
Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters 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]), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the first through sixth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the first through sixth causes of action.
Upon a review of the record, we find that there are triable issues of fact regarding the [*2]medical necessity of the services at issue in plaintiff’s seventh and eighth causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 19, 2015
Legal questions (4)
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer proved timely mailing of IME and EUO scheduling letters and the assignor's nonappearance, and the provider raised no triable issue.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Listed the insurer's timely denial of the claims on the IME/EUO no-show ground among the elements it established in winning dismissal of six causes of action.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
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)
Rejected the provider's contention and held the insurer established timely mailing of the IME and EUO scheduling letters and of its denials under its standard office practice.
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)
Held triable issues of fact on medical necessity existed for two causes of action, leaving that defense for trial rather than awarding judgment to either side.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51679(U))The insurer proved IME nonappearance on six claims and rebutted the presumption of receipt of the remaining claim.
- New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 51632(U))The provider raised factual issues over verification receipt on four causes of action, but the insurer proved nonappearance on the fourth claim.
- All Star Wellness Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51630(U))The insurer proved IME nonappearance as to two bills and lack of medical necessity as to another, without a triable issue in opposition.
- Quality Health Prods. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51118(U))The insurer established lack of medical necessity for supplies to three assignors, and the provider offered no rebutting medical evidence.
- Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing.