July 23, 2021

Parisien v Tri State Consumers Ins. Co. (2021 NY Slip Op 50728(U))

https://www.beynensonlaw.com/case-law/parisien-v-tri-state-consumers-ins-co-2021-ny-slip-op-50728u/

Court: Appellate Term, Second Department
Decided: July 23, 2021
Citation: 2021 NY Slip Op 50728(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Parisien v Tri State Consumers Ins. Co., 2021 NY Slip Op 50728(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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's unrebutted IME report established a lack of medical necessity for the provider's subsequent services. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The affirmed report from the doctor who examined the assignor before the services were rendered supplied a factual basis and medical rationale for concluding that further treatment was unnecessary. The provider did not challenge the Civil Court's finding under CPLR 3212 (g) that the claims had been timely denied. The appellate court reached no other issue, including the insurer's fee schedule defense.

Reported in New York Official Reports at Parisien v Tri State Consumers Ins. Co. (2021 NY Slip Op 50728(U))

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

Jules Francois Parisien, M.D., as Assignee of Northern, Gilbert, Respondent,
against
Tri State Consumers Ins. Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan and Roman Kravchenko of Cousnel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 20, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint on the grounds that the services at issue lacked medical necessity and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect, pursuant to CPLR 3212 (g), that defendant had established that it had timely denied plaintiff’s claims.

In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op [*2]51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; 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 Dept, 2d & 11th Jud Dists 2007]). In light of the foregoing, we reach no other issue.

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

ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021

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 established lack of medical necessity and the provider failed to rebut it

Held the insurer's affirmed IME report, setting forth a factual basis and medical rationale for no further treatment, made a prima facie showing the provider did not rebut, entitling the insurer to summary judgment.

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.

Cited in this decision

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

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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.

Similar decisions

Parisien v 21st Century Ins. Co. (2018 NY Slip Op 51652(U))The insurer established timely mailing of the denial forms asserting lack of medical necessity, defeating the provider's appellate challenge.
Parisien v Travelers Ins. Co. (2022 NY Slip Op 50553(U))The insurer established the provider's failure to attend two duly scheduled EUOs and timely denials on that ground.
Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))The insurer proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial.
Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.
Parisien v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51602(U))No payment is due for medical service fees exceeding permissible fee-schedule charges under 11 NYCRR 65-3.8 (g) (1) (ii).