March 15, 2013

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))

https://www.beynensonlaw.com/case-law/new-york-diagnostic-med-care-p-c-v-geico-gen-ins-co-2013-ny-slipop-50419u/

Court: Appellate Term, Second Department
Decided: March 15, 2013
Citation: 2013 NY Slip Op 50419(U) · 39 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 127(A), 2013 NY Slip Op 50419(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment. In this action for assigned no-fault benefits, the provider also sought summary judgment but failed to establish its prima facie case. Although it proved nonpayment, it did not show that the denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion to dismiss the complaint on medical necessity grounds and otherwise affirmed, leaving the denial of the provider's motion intact.

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))

[*1]

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50419(U) [39 Misc 3d 127(A)]

Decided on March 15, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013

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

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-2315 K C.

New York Diagnostic Medical Care, P.C. as Assignee of JUDITH SAINT-LEGER, Appellant, —
against
GEICO General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 10, 2011. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; 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 from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Although plaintiff established that defendant had not paid the claim, plaintiff failed to show that the basis for the denial of the claim was conclusory, vague or lacked 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, [*2]2d, 11th & 13th Jud Dists 2011]). Thus, the Civil Court properly determined that plaintiff had failed to establish its prima facie case.

In opposition to defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, plaintiff submitted an affidavit by its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Neomy Med., P.C. v GEICO Ins. Co., 34 Misc 3d 144[A], 2012 NY Slip Op 50145[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 15, 2013

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

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

Held the provider showed nonpayment but failed to show the basis of the denial was conclusory, vague or lacked merit as a matter of law, so it did not establish its prima facie case.

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, 246 (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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the provider's doctor's affidavit sufficiently demonstrated a question of fact as to medical necessity, so the insurer's cross motion for summary judgment on lack of medical necessity should have been denied.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 95 (this one included) are in the same category.

Cited in this decision

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))The provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))The insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U))The provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.

Similar decisions

New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient.
New Life Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51061(U))The provider's practitioner failed to meaningfully rebut two peer review reports establishing lack of medical necessity.
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.
Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))The provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52003(U))The insurer's unrebutted sworn peer review established lack of medical necessity for the billed services.