April 12, 2019

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))

https://www.beynensonlaw.com/case-law/success-rehab-p-t-p-c-v-ny-cent-mut-fire-ins-co-2019-ny-slip-op50572u/

Court: Appellate Term, Second Department
Decided: April 12, 2019
Citation: 2019 NY Slip Op 50572(U) · 63 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co., 63 Misc 3d 140(A), 2019 NY Slip Op 50572(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 IME report established that the assignor's injuries had resolved and that the disputed services lacked medical necessity. The provider appealed the grant of summary judgment dismissing seven claims denied on medical necessity grounds. The insurer's mailing proof supported a presumption that the denials were timely mailed. Its affirmed IME report supplied a factual basis and medical rationale for finding the services unnecessary, and the provider failed to rebut that showing. The provider's remaining arguments were raised for the first time on appeal and, in any event, lacked merit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.

Reported in New York Official Reports at Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))

[*1]

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co.

2019 NY Slip Op 50572(U) [63 Misc 3d 140(A)]

Decided on April 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 12, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-2884 K C

Success Rehab P.T., P.C., as Assignee of Carlos Ponce, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 10, 2016. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon seven claims for services provided from March 1, 2010 through September 22, 2010.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned, first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court entered August 10, 2016 as granted the branches of defendant’s motion seeking summary judgment dismissing seven claims for services provided from March 1, 2010 through September 22, 2010, which claims had been denied on the ground of lack of medical necessity.

Contrary to plaintiff’s assertion, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d [*2]1123 [2008]). In support of its motion, defendant proffered an affirmed report by the doctor who had performed an independent medical examination, which report set forth a factual basis and medical rationale for the doctor’s determination that the assignor’s injuries had resolved and that there was no medical necessity for the rendered services. Defendant’s prima facie showing was not rebutted by plaintiff. Plaintiff’s remaining arguments were improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and, in any event, lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 12, 2019

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.

Proof of mailing

Open the full map

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

Rejected the provider's challenge and held the insurer's proof sufficient to raise a presumption that its medical-necessity denials were timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

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.

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

Held the insurer entitled to summary judgment because its affirmed IME report gave a factual basis and medical rationale for finding the injuries resolved and further services unnecessary, and the provider offered no rebuttal.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

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.

Similar decisions

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.
Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely denials based on those nonappearances.
Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50875(U))The insurer proved its fee-schedule reductions, but the treating doctor's findings raised a factual issue on the remaining claims' necessity.
Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))The insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue.