March 31, 2010

Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))

https://www.beynensonlaw.com/case-law/prime-psychological-servs-p-c-v-mercury-ins-group-2010-ny-slip-op50585u/

Court: Appellate Term, Second Department
Decided: March 31, 2010
Citation: 2010 NY Slip Op 50585(U) · 27 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Prime Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 127(A), 2010 NY Slip Op 50585(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 psychologist's affirmation failed to rebut the insurer's peer review conclusions that the services lacked medical necessity. The Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint. The insurer established timely mailing of the denial and submitted its psychologist's sworn peer review report, which supplied a factual basis and medical rationale for finding the professional health services unnecessary. That evidence established prima facie entitlement to summary judgment under Pan Chiropractic, P.C. v Mercury Ins. Co. The provider's opposing affirmation did not meaningfully address the report's conclusions and therefore failed to raise a triable issue of fact.

Reported in New York Official Reports at Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))

[*1]

Prime Psychological Servs., P.C. v Mercury Ins. Group

2010 NY Slip Op 50585(U) [27 Misc 3d 127(A)]

Decided on March 31, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-83 Q C.

Prime Psychological Services, P.C. a/a/o BRENCY PAULINO, Appellant,
against
Mercury Insurance Group, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 28, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 on the ground that the professional health services provided lacked medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal ensued.

Defendant made a prima facie showing of its entitlement to summary judgment by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for his opinion that the professional health services at issue were not medically necessary (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

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

Held the sworn psychologist's peer review set forth a factual basis and medical rationale, and the provider's psychologist's affirmation did not meaningfully refer to, let alone rebut, its conclusions.

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 timely mailing of the medical-necessity denial as part of its prima facie showing.

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.

Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.

Similar decisions

Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))The insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))The provider's medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review.
AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))The insurer's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence.
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.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))The insurer's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements.