February 7, 2014

Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U))

https://www.beynensonlaw.com/case-law/provvedere-inc-v-republic-w-ins-co-2014-ny-slip-op50219u/

Court: Appellate Term, Second Department
Decided: February 7, 2014
Citation: 2014 NY Slip Op 50219(U) · 42 Misc 3d 141(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

Provvedere, Inc. v Republic W. Ins. Co., 42 Misc 3d 141(A), 2014 NY Slip Op 50219(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 medical testimony, found wholly credible at trial, established that the traction units lacked medical necessity. The parties stipulated that medical necessity of the supplied devices was the only trial issue. The insurer's doctor testified that the cervical and lumbar traction units were unnecessary and supplied a factual basis and medical rationale for that conclusion. The provider called no rebuttal witnesses. Given that evidence and the Civil Court's express credibility finding, the Appellate Term, Second Department, disagreed with the determination that the insurer had failed to carry its burden. It reversed the provider's judgment after the nonjury trial and remitted for entry of judgment for the insurer dismissing the complaint.

Reported in New York Official Reports at Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U))

[*1]

Provvedere, Inc. v Republic W. Ins. Co.

2014 NY Slip Op 50219(U) [42 Misc 3d 141(A)]

Decided on February 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ
2011-3137 RI C.

Provvedere, Inc. as Assignee of JASON DOWDY, Respondent,
against
Republic Western Insurance Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014

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

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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 insurer established lack of medical necessity at trial because its credited doctor gave a factual basis and medical rationale for finding the traction units unnecessary and the provider called no rebuttal witnesses.

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.

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 51537(U)) FollowedThe provider's challenge to an allegedly inadequate judgment failed because unrebutted peer-review testimony established lack of medical necessity.

Similar decisions

Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.
All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here.
Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action.
Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
Van Courtland Med. Care, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52013(U))The insurer's unrebutted peer review established lack of medical necessity and warranted dismissal of the claim at issue on appeal.