May 22, 2014

New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))

https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-geico-ins-co-2014-ny-slip-op50880u/

Court: Appellate Term, Second Department
Decided: May 22, 2014
Citation: 2014 NY Slip Op 50880(U) · 43 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity (see the maps)

Cite as

New Way Med. Supply Corp. v GEICO Ins. Co., 43 Misc 3d 144(A), 2014 NY Slip Op 50880(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered. Three affirmed reports supplied factual bases and medical rationales for finding the supplies unnecessary. Although the appellate briefs suggested that the provider served an opposing affidavit, the order recited consideration only of the provider's motion and insurer's cross motion. The provider's motion contained no medical evidence raising a factual issue, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the provider's CPLR 3212 (g) findings as academic, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))

[*1]

New Way Med. Supply Corp. v GEICO Ins. Co.

2014 NY Slip Op 50880(U) [43 Misc 3d 144(A)]

Decided on May 22, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1190 K C

New Way Medical Supply Corp. as Assignee of VASHOM BENNET, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted three affirmed peer review reports, each of which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Although the parties’ appellate briefs indicate that, in opposition to defendant’s cross motion, plaintiff may have served papers which included an affidavit purportedly rebutting the peer review reports, the order appealed from recites that the sole papers considered by the court were plaintiff’s motion and defendant’s cross motion. This court’s review is limited to the papers considered by the Civil Court (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50115[U] [App Term, 2d & 11th Jud Dists 2005]), and plaintiff did not submit any medical evidence in support of its motion for summary judgment which might have raised a triable issue of fact as to medical necessity.

Thus, as plaintiff did not rebut defendant’s prima facie showing of a lack of medical necessity and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in plaintiff’s favor are vacated as academic, and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v [*2]Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 22, 2014

Legal questions

A question 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 insurer entitled to summary judgment because three affirmed peer reviews made a prima facie showing and no rebuttal affidavit was among the papers the lower court considered, nor did the provider's own motion include medical evidence.

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.

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50115(U)) FollowedThe moving providers established entitlement to summary judgment on the papers identified in the order as the sole papers considered.
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

Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50868(U))The provider's medical affidavit failed to rebut the insurer's peer review showing that the disputed supply lacked medical necessity.
Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.
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.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52367(U))The insurer established lack of medical necessity through an affirmed peer review report, and the provider submitted no medical rebuttal.
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.