July 17, 2006

SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U))

https://www.beynensonlaw.com/case-law/sz-med-p-c-v-clarendon-natl-ins-co-2006-ny-slip-op-51428u/

Court: Appellate Term, Second Department
Decided: July 17, 2006
Citation: 2006 NY Slip Op 51428(U) · 12 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144(A), 2006 NY Slip Op 51428(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense. The Appellate Term, Second Department, reversed the denial of the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney fees under Insurance Law § 5106. The provider established its prima facie case. The denial merely referred to a peer review finding treatment unnecessary, and no evidence showed that the report was sent within the 30-day claim-determination period. A separate concurrence agreed only with the result and disputed the majority's requirement, reasoning that 11 NYCRR 65-3.8 (b) (4) requires release of a peer review report only upon written request.

Reported in New York Official Reports at SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U))

[*1]

SZ Med. P.C. v Clarendon Natl. Ins. Co.

2006 NY Slip Op 51428(U) [12 Misc 3d 144(A)]

Decided on July 17, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1266 Q C. NO. 2005-1266 Q C

SZ MEDICAL P.C. a/a/o DOMINQUE ANTOINE, Appellant,
against
CLARENDON NATIONAL INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered June 30, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see e.g. Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Although defendant’s denial of claim form was timely mailed to plaintiff, it simply stated that the claim was denied because a peer reviewer determined that the treatment was not medically necessary. Since there is no evidence that the peer review report was sent to plaintiff within the 30-day claim determination period, and the denial of claim was otherwise devoid of any factual basis or medical rationale for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claim (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 [*2]NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claim. [*3]

Consequently, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 17, 2006

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.

Claimant's prima facie case on motions

Open the full map

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)

Held the record established the provider's prima facie showing that it submitted the claim and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 446 (this one included) are in the same category.

Cited in this decision

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545)The insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U))A sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.

Cited by

A label shows how the later decision treated this one.

Olympic Chiropractic, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50011(U)) FollowedA timely but factually insufficient IME denial does not preserve a medical-necessity defense.
Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co. (2006 NY Slip Op 52251(U)) FollowedA timely denial may still preclude a medical-necessity defense if it is conclusory and the peer review is not timely supplied.
W.H.O. Acupuncture, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52244(U))A denial citing a peer review preserves medical necessity when a factually sufficient report is supplied within the 30-day determination period.
Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co. (2006 NY Slip Op 52493(U))The insurer was precluded from asserting medical necessity because its denials lacked factual grounds and timely delivery of peer reviews was unproved.

Similar decisions

A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.
Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.