November 1, 2016

North Bronx Med. Health Care v Auto One Ins. Co. (2016 NY Slip Op 51625(U))

https://www.beynensonlaw.com/case-law/north-bronx-med-health-care-v-auto-one-ins-co-2016-ny-slip-op51625u/

Court: Appellate Term, Second Department
Decided: November 1, 2016
Citation: 2016 NY Slip Op 51625(U)
Posture: Summary judgment
Outcome: Split result
Issues: Discovery and procedure Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

North Bronx Med. Health Care v Auto One Ins. Co., 2016 NY Slip Op 51625(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.

The insurer was entitled to depose the treating doctor, but factual issues on medical necessity defeated summary judgment on both claims. Civil Court had limited the remaining trial issue to medical necessity under CPLR 3212 (g). The treating doctor's deposition was material and necessary to the insurer's defense under CPLR 3101 (a), entitling it to discovery. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the branch compelling that deposition, while affirming denial of the insurer's summary judgment request.

Reported in New York Official Reports at North Bronx Med. Health Care v Auto One Ins. Co. (2016 NY Slip Op 51625(U))

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

North Bronx Medical Health Care, as Assignee of THOMAS GRAY, Respondent,
against
Auto One Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 28, 2014. 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 a deposition of plaintiff’s treating doctor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel a deposition of plaintiff’s treating doctor is granted; 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 or, in the alternative, to compel plaintiff’s treating doctor to appear for a deposition. The Civil Court denied defendant’s motion but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

Upon a review of the record, we find that, as to both claims at issue, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branch of defendant’s motion seeking summary judgment was properly denied.

However, as the deposition of plaintiff’s treating doctor is material and necessary to defendant’s defense of this action (see CPLR 3101 [a]; Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), defendant is entitled to such discovery.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel a deposition of plaintiff’s treating doctor is granted.

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

Decision Date: November 01, 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 a triable issue of fact existed as to the medical necessity of both claims.

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

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.

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51133(U)) FollowedThe treating provider's deposition was material and necessary to the insurer's medical necessity defense despite a pending summary judgment motion.
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U)) FollowedAn insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.

Cited by

Moshe v Country-Wide Ins. Co. (2018 NY Slip Op 28220)A provider owner seeking EUO lost earnings was protected from a second deposition, with the insurer allowed interrogatories.

Similar decisions

Bay Plaza Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 51082(U))The insurer was entitled to a provider deposition on medical necessity, but a triable factual issue precluded summary judgment.
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.
S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51513(U))The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense.
North Bronx Med. Health Care v Praetorian Ins. Co. (2015 NY Slip Op 51231(U))The insurer's motion for summary judgment dismissing the provider's claims on medical necessity grounds was denied.
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.