Hernandez v. Merch. Mut. Ins. Co.
| Decision Date | 26 October 2017 |
| Docket Number | Index 68054/2013 |
| Citation | 2017 NY Slip Op 33358 (U) |
| Parties | MARIO HERNANDEZ Plaintiff, v. MERCHANT MUTUAL INSURANCE COMPANY, Defendant |
| Court | New York Supreme Court |
AMENDED DECISION & ORDER
The following papers were considered on plaintiffs motion seeking an Order granting him summary judgment and other relief:
Notice of Motion/Affirmation/Affidavit/Exhibits 1-19
1-24
Affirmaiion in Opposition/Exhitit 1-65
Reply Affirmaiion/Exhitit 1
In this action, plaintiff seeks to recover first-patty no-fault insurance benefits related to a car accident that occurred on December 28, 2008. The accident occurred while plaintiff was stopped at a red light and was rear ended by a truck owned by the City of White Plains. At the time of the accident plaintiff was 30 years old and had no prior problems or injuries to his neck or back. As a result of the accident plaintiff sustained injuries to his back and neck and required medical treatment from the White Plains Hospita, National Neurolabs and orthopedic surgeon, Dr. Richard Peress and required back surgery on June 8, 2010.
It is undisputed that defendant is the no-fault carrier responsible to pay plaintiff his basic economic losses related to the accident; that plaintiff timely submitted a NF-2 claim form; that plaintiff complied with a policy provisions related to his claim for medical care and loss of earnings; that the subject policy has available $75, 000.00 to pay plaintiffs basic economic loss; and that defendant has paid only $30, 426.14 of the available $75, 000.00 benefit. The dispute here surrounds defendant's obligation to pay the remaining $44, 573.86
Plaintiff submitted claims relating to back surgery performed on June 8, 2010 at Phelps Memorial Hospital. Defendant contested the necessity of the surgery and denied plaintiff's claim. In its denial, defendant states that "...no medical documentation has been provided to support this treatment is related to 12/9/08 MVA." In rejecting plaintiffs claim, defendant annexed a report from Dr. Weiss-Citrome, a psychiatrist who plaintiff argues does not have the necessary foundation to give an opinion as to the necessity of orthopedic surgery. In addition, plaintiff argues that her report does not state the facts upon which her conclusion, that plaintiffs disability in lifting more than 40 Ibs. is attributable to "pre-accident pathology", is based.
As to defendant's statement that no medical documentation was provided to support that the treatment is related to 12/29/08 MVA, in the denial of Phelps Memorial claim, plaintiff states that defendant never made a request for verification of treatment or sent Phelp's Memorial a claim forms to which a copy of the operative report was attached and also specifically stated that the condition treated with the surgery was related to the accident.
A jury trial in a third-party companion case filed by plaintiff in Supreme Court, Westchester County, against the City of White Plains and Alexander Howard was held. In that case plaintiff sought money damages for medical expenses related to the surgery in this case as well as his loss of earnings. Both Dr. Peress and Dr. Weiss-Citrome testified at that trial. To succeed, plaintiff had to establish that the injuries were caused by the accident and that the surgery and loss of earnings were medically necessary. This case resulted in a jury award to plaintiff of $747, 583.50. The jury awarded plaintiff $155, 990.52 against Dr. Peress' billing; $47, 000.00 for past loss of earnings; and $175, 602.00 for future loss of earnings.
As a result of the collateral source rule, plaintiff was required to reduce the verdict against the City of White Plains by $75, 000.00 in recognition of the availability of no-fault benefits from the defendant. As stated above, defendant has paid $30, 426.14 of the $75, 000.00 and the defendant refuses to pay the remaining $44, 573.86. Plaintiff believes that he is entitled to summary judgment based upon the doctrine of collateral estoppel, and that the denials issued by defendant were not supported by medical proof establishing that the surgery was not medically necessary.
A party on a motion for summary judgment must assemble affirmative proof to establish his entitlement to judgment as a matter of law. (Zuckerman v City of N. Y., 49 N.Y.2d 557 [1980]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Only when such a showing has been made must the opposing party set forth evidentiary proof establishing the existence of a material issue of fact (see e.g. Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). In other words, the burden shifts to the party opposing the motion, who must then show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of their position.
Section 5103 of the Insurance Law, part of the "Comprehensive Motor Vehicle Insurance Reparations Act," which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle "for loss arising out of the use or operation ... of such motor vehicle" (Insurance Law § 5103[a][1]). To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to the defendant, that the defendant received the claim and that the defendant failed to payor deny the claim within thirty days. (Amaze Medical Supply Inc. v Allstate Insurance Company, 3 Misc.3d 133(A), 2004 WL 1197345 [App. Term, 2nd & 11th Jud. Dists. 2004]; King's Medical Supply Inc. v Country-Wide Ins. Co., 3 Misc.3d 767, 783 N.Y.S.2d 448 [N.Y. City Civ. Ct. 2004]). A plaintiff must also establish that the loss arose from the automobile accident and that the loss was medically necessary as a result of the accident.
Once a plaintiff has established its prima facie case, the burden shifts to the defendant to come forward with admissible evidence demonstrating the existence of a material issue of fact. (Amaze Medical Supply Inc. v Allstate Insurance Company, 3 Misc.3d at133).
Here, it is undisputed through defendant's admission, that all of the statutory prerequisites of the instant no-fault claim have been met. Plaintiff provided a copy of the NF-2 which defendant admitted to receiving within 30 days of the accident as well as the affidavits of Mario Hernandez, affirmations of Dr. Peress and of Christian Taylor. These submissions along with the annexed claim form support the plaintiff's position that the medical and hospital treatment was provided to plaintiff, and that the treatment was medically necessary as a result of the injuries plaintiff sustained from the accident. The only basis defendant has asserted for denying plaintiffs claim is that the treatment was medically unnecessary.
The law is well established that the burden is on the insurer to prove that the medical treatment was medically unnecessary (A.B. Medical Services PLLC v Geico Insurance, 2 Misc.3d 26, 773 N.Y.S.2d 773 (App. Term, 2nd & 11th Jud. Dists. 2003]; King's Medical Supply Inc. v Country-Wide Insurance Company, 783 N.Y.S.2d at 448). A denial premised on a lack of medical necessity must be supported by competent evidence such as an independent medical examination, a peer review or other proof which sets forth a factual basis and a medical rationale for denying the claim (Amaze Medical Supply Inc. v Eagle Insurance Company, 2 Misc.3d 128(A), 2003 WL 23310886 ().
In establishing that the surgery was unnecessary, plaintiff relies upon a report submitted by Dr. Weiss-Citrome. Plaintiff contends that this report does not raise a question of fact because Dr. Weiss-Citrome is a physiatrist, not an orthopedist, and her report does not state the necessary foundation to give an opinion as to the necessity of orthopedic surgery, (DeGiorgio v Racanelli 136 A.D.3d 734, 737 [2d Dept 2016]). "While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field...
To continue reading
Request your trial