December 31, 2014

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51888(U))

https://www.beynensonlaw.com/case-law/five-boro-med-equip-inc-v-new-york-cent-mut-fire-ins-co-2014-nyslip-op-51888u/

Court: Appellate Term, First Department
Decided: December 31, 2014
Citation: 2014 NY Slip Op 51888(U)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51888(U) (App Term, 1st Dept 2014)

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 established lack of medical necessity for two supply claims but failed to establish timely denial of a third claim. The Appellate Term, First Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the two claims supported by timely denials and a sworn peer review with a sufficient factual basis and medical rationale. The provider's attorney affirmation, without medical evidence or other competent proof, raised no triable issue; objections to the reviewer's qualifications concerned weight rather than admissibility. Denial of summary judgment on the remaining supply claim was affirmed because the insurer's own submissions tended to show an untimely denial.

Reported in New York Official Reports at Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51888(U))

Five Boro Medical Equipment, Inc., a/a/o Anthony Coston, Plaintiff-Respondent,
against
New York Central Mutual Fire Insurance Company Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated May 22, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), dated May 22, 2013, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claims seeking no-fault first-party benefits in the aggregate amount of $1,710.05; as modified, order affirmed, with $10 costs to defendant-appellant.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims in the total sum of $ 1,710.75, for medical supplies provided to plaintiff’s assignor on June 2, 2011 and June 22, 2011, by establishing its proper and timely mailing of the denial of claim forms at issue herein (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]), and submitting a sworn peer review report which set forth a sufficient factual basis and medical rationale for the stated conclusion that the medical supplies provided to the assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).

We sustain so much of the order under review as denied defendant’s motion for summary judgement dismissing plaintiff’s claim of $1,080 for medical supplies provided to plaintiff’s assignor on June 27, 2011, since defendant’s own moving papers tend to indicate that this claim was not timely denied (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 317 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1990]).

Plaintiff’s remaining arguments are either unpreserved for appellate review or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 31, 2014

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.

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 sworn peer review set out a sufficient factual basis and medical rationale, and the provider's attorney affirmation without medical evidence raised no triable issue; objections to the reviewer's qualifications went to weight.

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 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.

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: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer established proper and timely mailing of its denial of claim forms for the June 2 and June 22 supplies, supporting summary judgment along with its peer review.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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.
Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U)) FollowedThe provider's unsworn medical report failed to rebut the insurer's showing that the medical supplies were unnecessary.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)The provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Similar decisions

Five Boro Med. Equip., Inc. v A. Cent. Ins. Co. (2016 NY Slip Op 50412(U))The insurer's incomplete peer review failed to support two denials, and the provider's medical affidavit raised factual issues on two other claims.
Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co. (2014 NY Slip Op 51886(U))The insurer's peer review established lack of medical necessity, and the provider's attorney affirmation raised no triable issue.
Trimed Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 51880(U))The insurer established lack of medical necessity for three claims, but a factual issue remained over the fourth claim's late submission.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.