August 24, 2012

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51655(U))

https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-geico-gen-ins-co-2012-ny-slip-op51655u/

Court: Appellate Term, Second Department
Decided: August 24, 2012
Citation: 2012 NY Slip Op 51655(U) · 36 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co., 36 Misc 3d 149(A), 2012 NY Slip Op 51655(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 proved timely denials and lack of medical necessity for four claims, but failed to prove timely denials of two others. The provider appealed the grant of the insurer's cross motion for summary judgment dismissing its assigned no-fault action. A claims employee's affidavit established timely mailing of denials for two claims and the unpaid portions of two partially paid claims. Affirmed peer review and IME reports supported the medical-necessity defense, which the provider did not rebut. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal only of those two claims and unpaid portions, leaving the other two claims pending because timely denial was not established.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51655(U))

[*1]

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co.

2012 NY Slip Op 51655(U) [36 Misc 3d 149(A)]

Decided on August 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2154 K C.

Viviane Etienne Medical Care, P.C. as Assignee of MIKHAIL LEVIN, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s claims division employee established, with respect to plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80, that defendant’s denial of claim forms had been timely [*2]mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). It is undisputed that defendant had made timely partial payments on the latter two claims. Moreover, defendant annexed to its cross motion papers an affirmed peer review report and an affirmed independent medical examination report which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the services at issue in the above four claims. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. In view of the foregoing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the above four claims were properly granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

However, defendant failed to establish that it had timely denied two claims, each seeking to recover the sum of $838.95 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover upon these claims.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012

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: Different mailing results for different documents or claims in one decision

Held the claims employee's affidavit established timely mailing of denials for four claims but the insurer failed to establish timely denial of two other claims, which therefore survived.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (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 affirmed peer review and IME reports set forth a factual basis and medical rationale for lack of necessity on the four timely denied claims, and the provider left that showing unrebutted.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 50199(U))The insurer failed to establish timely denial of one claim or its fee schedule defense to another, requiring denial of dismissal as to both.
New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing.
Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.