October 13, 2009
Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U))
https://www.beynensonlaw.com/case-law/right-aid-diagnostic-medicine-p-c-v-geico-ins-co-2009-ny-slip-op52122u/
- Decided
- October 13, 2009
- Citation
- 2009 NY Slip Op 52122(U) · 25 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions (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 Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U))
| Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. |
| 2009 NY Slip Op 52122(U) [25 Misc 3d 130(A)] |
| Decided on October 13, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and STEINHARDT, JJ
2008-2087 Q C.
against
Geico Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered September 30, 2008, deemed from a judgment of the same court entered November 10, 2008 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 30, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,693.12.
ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, based upon an affirmed peer review report, that the MRIs were not medically necessary. By order dated September 30, 2008, the Civil Court granted plaintiff’s motion for summary judgment. After judgment was entered on November 10, 2008, defendant filed a notice of appeal from the September 30, 2008 order. We deem the appeal to be from the judgment (see CPLR 5512 [a]).
On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. We disagree because the affidavit was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition to plaintiff’s motion, defendant established that it had timely denied plaintiff’s claims based upon an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that the services provided to plaintiff’s assignor were not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant [*2]proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst., 39 AD3d 832).
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009
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 the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win
Held the insurer's timely denial based on an affirmed peer review setting forth a factual basis and medical rationale raised a triable issue on medical necessity, denying the provider's motion but declining to search the record for the insurer.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Rejected the insurer's argument that the billing manager's affidavit failed to make the annexed documents admissible as business records, holding it complied with CPLR 4518 and shifted the burden.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
- Quality Health Prods., P.C. v Progressive Ins. Co. (2008 NY Slip Op 51757(U))The insurer failed to prove IME nonappearance on two claims, but its peer review raised a medical-necessity issue on the third.
- Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U)) FollowedThe insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature.
Similar decisions
- Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.
- Richmond Radiology, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52210(U))The insurer's affirmed peer review raised a triable issue of medical necessity despite the provider's challenge to the information reviewed.
- Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))The insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.
- 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.
- Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.