September 29, 2015

Premier Health Choice v Praetorian Ins. Co. (2015 NY Slip Op 51383(U))

https://www.beynensonlaw.com/case-law/premier-health-choice-v-praetorian-ins-co-2015-ny-slip-op51383u/

Court: Appellate Term, First Department
Decided: September 29, 2015
Citation: 2015 NY Slip Op 51383(U) · 49 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Premier Health Choice v Praetorian Ins. Co., 49 Misc 3d 128(A), 2015 NY Slip Op 51383(U) (App Term, 1st Dept 2015)

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 unsworn doctor's report failed to rebut IME findings that the assignor needed no further physical therapy. The Appellate Term, First Department, reversed the order, granted the insurer summary judgment, and dismissed the complaint. The insurer submitted IME reports from its examining orthopedic doctor and neurologist that supplied a sufficient factual basis and medical rationale for concluding that the assignor's injuries had resolved and further physical therapy was unnecessary. The provider submitted an unsworn doctor's report with its attorney's affirmation. Under Grasso v Angerami, that report lacked probative value and could not raise a triable issue.

Reported in New York Official Reports at Premier Health Choice v Praetorian Ins. Co. (2015 NY Slip Op 51383(U))

[*1]

Premier Health Choice v Praetorian Ins. Co.

2015 NY Slip Op 51383(U) [49 Misc 3d 128(A)]

Decided on September 29, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J. P., Hunter, Jr., Ling-Cohan, JJ.
570261/15

Premier Health Choice, a/a/o Jessica Calderon, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.) entered January 18, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.) entered January 18, 2012, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for physical therapy treatment rendered to plaintiff’s assignor, by submitting the independent medical examination [IME] reports of its examining orthopedic doctor and neurologist which set forth a sufficient factual basis and medical rationale for the conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, the unsworn doctor’s report submitted with plaintiff’s attorney’s affirmation was without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]; Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51802[U][App Term, 1st Dept]), and insufficient to raise a triable issue (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 29, 2015

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

Granted the insurer summary judgment because its IME reports showed the injuries had resolved with no need for further therapy, and the provider's unsworn doctor's report had no probative value.

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 72 decisions on this question in the First Department courts and the Court of Appeals, 28 (this one included) are in the same category.

Cited in this decision

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

Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51802(U)) FollowedThe provider's unsworn medical report failed to rebut the insurer's sworn IME showing that chiropractic treatment lacked medical necessity.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526) FollowedThe provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Similar decisions

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
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.
Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U))The provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review.
Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U))The insurer proved mailing of the IME notices and the assignor's nonappearance, and the provider failed to raise a triable issue.
American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.