June 22, 2018

Parkway Med. Care, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51005(U))

https://www.beynensonlaw.com/case-law/parkway-med-care-p-c-v-geico-gen-ins-co-2018-ny-slip-op51005u/

Court: Appellate Term, Second Department
Decided: June 22, 2018
Citation: 2018 NY Slip Op 51005(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Parkway Med. Care, P.C. v GEICO Gen. Ins. Co., 2018 NY Slip Op 51005(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 peer review established lack of medical necessity, and the provider's discovery inaction did not defeat summary judgment. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the assigned no-fault claim. The insurer established timely mailing of its denial and submitted an affirmed neurologist's peer review setting forth a factual basis and medical rationale for finding the services unnecessary. The provider had ample opportunity to compel discovery or investigate before moving for summary judgment, so its failure to do so did not warrant denial of the cross motion or a continuance.

Reported in New York Official Reports at Parkway Med. Care, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51005(U))

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

Parkway Medical Care, P.C., as Assignee of Jennifer Prepetit, Appellant,
against
GEICO General Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered October 17, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that the denial of claim form, which had denied the claim on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted an affirmed peer review report which set forth a factual basis and medical rationale for the neurologist’s determination that there was a lack of medical necessity for the services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 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]). Defendant’s prima facie showing was not rebutted by plaintiff.

Upon the record presented, we find no merit to plaintiff’s argument that defendant’s cross motion should have been denied, or a continuance ordered to provide an opportunity for disclosure, as plaintiff had ample opportunity to take steps to compel discovery or otherwise investigate the case before it moved for summary judgment. Plaintiff failed to do so, and its inaction may not now be used as a means to defeat defendant’s cross motion (see Edwards v Terryville Meat Co., 178 AD2d 580 [1991]; Silinsky v State-Wide Ins. Co., 30 AD2d 1 [1968]).

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 22, 2018

Legal questions (2)

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.

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Upheld summary judgment for the insurer because its affirmed neurologist's peer review set forth a factual basis and medical rationale for lack of medical necessity and the provider did not rebut it.

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.

Proof of mailing

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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)

Held the insurer established that its medical-necessity denial was timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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 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

Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51270(U))The insurer's summary judgment cross motion based on lack of medical necessity remained denied on appeal.
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.
Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))The provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51447(U))The insurer established timely denials and an unrebutted lack of medical necessity through affirmed peer review reports.