Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 2010 NY Slip Op 50829(U)(App. Term 2d Dept. 2010)
“Appeal from an amended order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated July 17, 2008.”
“In support of its motion, plaintiff submitted defendant’s affirmed peer review reports and argued that plaintiff was entitled to summary judgment because the peer review reports did not adequately set forth a medical justification to support the peer review doctor’s conclusions that the services at issue were not medically necessary. In opposition to plaintiff’s motion, defendant established that its denial of claim forms, which relied upon the peer review reports, were timely (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the peer review reports set forth a sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”
It is nice to see Judge Engel’s treatise on State Farm’s mailing fall one case at a time. I will admit that I am biased, since I was on the losing end of Acupuncture Prima Care, P.C. v. State Farm, 17 Misc.3d 1175 (App. Term 2d Dept. 2007). Other than that and an unsuccessful challenge to the sufficiency of the peer review, this case does not add anything to our jurisprudence.
2 Responses
Once again an upstart civil court Judge, as brilliant as he is, thought that he could undo the nihilism of the App Term. Again it all comes down to proving and proof. In the Appellate Term there is no such thing.
Except with Engel one day he’ll be reversing the Appellate Term — kind of got that feel about him.
It is a two way street. Look what happened to Mercury on Quality Psychological Services, P.C. v. Mercury Ins. Group
27 Misc.3d 129(A)(App. Term 2d Dept. 2010); Co-Op City Chiropractic, P.C. v. Mercury Ins. Group, 26 Misc.3d 145(A)(App. Term 2d Dept. 2010); Infinity Health Products, Ltd. v. Mercury Ins. Co., 26 Misc.3d 142(A)(App. Term 2d Dept. 2010). Upon a review of the records in those cases, most would agree that Plaintiff presented insufficient proof that “addressed let alone rebut” the evidence in support of the motion. Yet, the Appellate Term gave the Plaintiff’s a free pass. So be it.
As I have said countless times on here, be careful what you wish for…