May 3, 2019

Tyorkin v Park Ins. Co. (2019 NY Slip Op 50682(U))

https://www.beynensonlaw.com/case-law/tyorkin-v-park-ins-co-2019-ny-slip-op-50682u/

Court: Appellate Term, Second Department
Decided: May 3, 2019
Citation: 2019 NY Slip Op 50682(U)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Medical necessity
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

Tyorkin v Park Ins. Co., 2019 NY Slip Op 50682(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 provider's summary judgment motion was denied on appeal for failure to establish an untimely or legally insufficient denial. The Appellate Term, Second Department, reversed the judgment and vacated the grant of the provider's motion in the assigned no-fault action. It upheld denial of the insurer's cross motion because the insurer's papers did not establish lack of medical necessity as a matter of law.

Reported in New York Official Reports at Tyorkin v Park Ins. Co. (2019 NY Slip Op 50682(U))

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

Maxim Tyorkin, M.D., as Assignee of Jonda Petrizzini, Respondent,
against
Park Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered July 28, 2016, deemed from a judgment of that court entered September 27, 2016 (see CPLR 5501[c]). The judgment, entered pursuant to the July 28, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $9,753.88.

ORDERED that the judgment is reversed, with $30 costs, so much of the July 28, 2016 order as granted 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 and defendant cross-moved for summary judgment dismissing the complaint. By order entered July 28, 2016, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered on September 27, 2016, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne [*2]Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As defendant’s papers failed to establish, as a matter of law, that there was a lack of medical necessity, defendant’s cross motion was properly denied.

Accordingly, the judgment is reversed, so much of the July 28, 2016 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 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.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's proof failed to establish that the claim had not been timely denied or that the timely denial was conclusory, vague or without merit, so its motion should have been denied.

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

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer's cross motion properly denied because its papers failed to establish lack of medical necessity as a matter of law.

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, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Tyorkin v GEICO Gen. Ins. Co. (2017 NY Slip Op 50364(U))The insurer's peer review established lack of causal relation, and the provider's doctor's affidavit failed to rebut its conclusions.
Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))The insurer established timely IME notices, the assignor's nonappearances, and timely denials based on failure to satisfy a coverage condition.
Tyorkin v New Jersey Mfrs. Ins. Group (2022 NY Slip Op 51234(U))The provider's renewal motion failed because its affidavits supplied no new facts and no reasonable justification for their earlier omission.
Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal.
Parkway Med. Care, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51005(U))The insurer's unrebutted peer review established lack of medical necessity, and the provider's discovery inaction did not defeat summary judgment.