March 10, 2008

NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))

https://www.beynensonlaw.com/case-law/ny-comprehensive-med-p-c-v-maryland-cas-co-2008-ny-slip-op-50521u/

Court: Appellate Term, Second Department
Decided: March 10, 2008
Citation: 2008 NY Slip Op 50521(U) · 19 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity (see the maps)

Cite as

NY Comprehensive Med., P.C. v Maryland Cas. Co., 19 Misc 3d 129(A), 2008 NY Slip Op 50521(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 cross motion failed because conflicting medical affirmations raised a triable issue of medical necessity. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's cross motion and denied it. The missing certificate of conformity for the insurer's Connecticut-notarized affidavit was a formal defect under CPLR 2309 (c) and Real Property Law § 299-a (1) that should have been disregarded because the provider did not object. The provider conceded timely denial. Its argument that the IME-based denial was defective for omitting the medical rationale lacked merit, and it conceded that the competing affirmations raised a factual issue; the court did not reach the insurer's remaining contention.

Reported in New York Official Reports at NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))

[*1]

NY Comprehensive Med., P.C. v Maryland Cas. Co.

2008 NY Slip Op 50521(U) [19 Misc 3d 129(A)]

Decided on March 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-65 Q C.

NY Comprehensive Medical, P.C. as assignee of Ah Kow Lock, Respondent,

against

Maryland Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 1, 2006, deemed from a judgment entered January 8, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 1, 2006 order which, inter alia, granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,149.20.

Judgment reversed without costs, so much of the order entered December 1, 2006 as granted plaintiff’s cross motion for summary judgment vacated and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court granted plaintiff’s cross motion, finding that the affidavit by defendant’s no-fault specialist did not establish that defendant’s denial of claim form was timely mailed because it was executed in Connecticut and defendant did not annex a certificate of conformity as required by CPLR 2309 (c). This appeal by defendant ensued in which defendant only seeks review of so much of the order as granted plaintiff’s cross motion for summary judgment.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

Although the affidavit of defendant’s no-fault specialist was notarized by a Connecticut notary public and was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1), the court should have disregarded such a defect in form since plaintiff did not object to the omission (see Matter of MBNA Am. Bank v Stehly, ___ Misc 3d ___, 2008 NY Slip Op 28010 [App Term, 2d & 11th Jud Dists 2008]). Moreover, [*2]plaintiff conceded that defendant’s denial of claim form was timely.

Plaintiff asserts that it was entitled to summary judgment because the defense of lack of medical necessity was precluded as the denial of claim form, based upon an independent medical examination, was defective since it did not set forth the medical rationale for the denial. Such a claim lacks merit (see New York Univ. Hosp. Rusk Inst. v Govt. Empl. Ins. Co., 39 AD3d 832 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs. v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]). Consequently, since plaintiff conceded that the parties’ conflicting affirmations regarding medical necessity raised an issue of fact, plaintiff’s cross motion for summary judgment should have been denied.

In light of the foregoing, we do not pass upon defendant’s remaining contention.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2008

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: 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 the provider's cross motion should have been denied because the denial form did not need to state a medical rationale and the provider conceded the conflicting affirmations on medical necessity raised an issue of fact.

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 612 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

New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)An insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.

Cited by

A label shows how the later decision treated this one.

NYC East-West Acupuncture, P.c. v Maryland Cas. Co. (2008 NY Slip Op 51762(U)) FollowedThe insurer's unrebutted IME evidence established lack of medical necessity, while the provider failed to authenticate its claim records.

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.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
Health Plus Med., P.C. v American Mfrs. Mut. Ins. Co. (2008 NY Slip Op 51444(U))The provider failed to lay a business-record foundation, and the insurers failed to prove timely mailing of verification requests and denials.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
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.