April 2, 2010
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))
https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-mercury-ins-group-2010-ny-slip-op50601u/
- Decided
- April 2, 2010
- Citation
- 2010 NY Slip Op 50601(U) · 27 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 10 later decisions (see Cited by)
- Legal questions
- Proof of mailing · Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))
| Quality Psychological Servs., P.C. v Mercury Ins. Group |
| 2010 NY Slip Op 50601(U) [27 Misc 3d 129(A)] |
| Decided on April 2, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-641 K C.
against
Mercury Insurance Group, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 4, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant had failed to demonstrate that the denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, had been timely mailed. The instant appeal by defendant ensued.
Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form since the affidavit contained a detailed description, based on the affiant’s personal knowledge, of defendant’s standard office practices or procedures used to ensure that the denial was properly addressed and mailed (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]). The papers submitted in support of defendant’s motion included a sworn peer review report by defendant’s psychologist, which set forth a factual basis and medical rationale for his opinion that there was a lack of medical necessity for the psychological services at issue (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). [*2]In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (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]), and the burden shifted to plaintiff to raise a triable issue of fact regarding medical necessity.
In opposition to defendant’s motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff’s assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see A.B. Med. Servs., PLLC, 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U]). In view of the existence of a triable issue of fact, defendant’s motion for summary judgment was properly denied and plaintiff’s cross motion should have been denied. The order is modified accordingly.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 02, 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.
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
Reversing the lower court's finding, held the claims representative's affidavit established timely mailing because it described in detail, from personal knowledge, the standard practices ensuring the denial was properly addressed and mailed.
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)
Held the sworn peer review made a prima facie showing, but the examining psychologist's sworn letter of medical necessity raised a triable issue, so both parties' motions were denied.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (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.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U)) FollowedThe insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
- 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.
Cited by (12)
A label shows how the later decision treated this one.
- Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361) FollowedAn insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.
- Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U)) FollowedThe provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
- Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U)) FollowedThe provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review.
- Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50188(U)) FollowedThe provider's doctor's affirmation raised a triable issue of medical necessity despite the insurer's sufficient peer reviews.
- Complete Radiology, P.C. v GEICO Ins. Co. (2012 NY Slip Op 50419(U)) FollowedThe treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment.
- Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U)) FollowedThe treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form.
- Neomy Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51638(U)) FollowedThe provider's doctor's affidavit raised a triable issue of medical necessity in response to the insurer's peer review report.
- Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U)) FollowedThe provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports.
- Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U)) FollowedThe provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion.
- Martin Plutno v Travelers Ins. Co. (2014 NY Slip Op 50412(U)) FollowedThe provider raised a factual issue on medical necessity but failed to rebut the insurer's fee-schedule defense to one claim.
Similar decisions
- Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U))The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment.
- Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))The provider's psychologist's affirmation failed to rebut the insurer's peer review conclusions that the services lacked medical necessity.
- Quality Psychological Servs., P.C. v Travelers Ins. Co. (2012 NY Slip Op 52080(U))The insurer established timely denial and lack of medical necessity, while the provider's psychologist failed to rebut the peer reviews.
- 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.
- 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.