January 28, 2014

Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-government-employees-ins-co-2014-ny-slip-op50130u/

Court: Appellate Term, Second Department
Decided: January 28, 2014
Citation: 2014 NY Slip Op 50130(U) · 42 Misc 3d 137(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Alev Med. Supply, Inc. v Government Employees Ins. Co., 42 Misc 3d 137(A), 2014 NY Slip Op 50130(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 provider's evidentiary objections failed, and dismissal of the challenged claims for lack of medical necessity was affirmed. The Appellate Term, Second Department, cited Park Slope Med. & Surg. Supply, Alrof and Urban Radiology to reject the hearsay objection to the insurer's doctor's testimony, without further analysis. The provider did not challenge the testimony's substance; recovery for a massager and a Thermophore was not at issue.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))

[*1]

Alev Med. Supply, Inc. v Government Employees Ins. Co.

2014 NY Slip Op 50130(U) [42 Misc 3d 137(A)]

Decided on January 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1024 Q C.

Alev Medical Supply, Inc. as Assignee of KECIA DANIELY, Appellant,
against
Government Employees Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 7, 2011. The judgment, entered pursuant to a decision of the same court dated October 14, 2010, insofar as appealed from, after a nonjury trial, dismissed the complaint except for so much thereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 14, 2010 is deemed a premature notice of appeal from the judgment entered February 7, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of defendant on most of plaintiff’s claims, and a judgment was entered dismissing the complaint except for so muchthereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff raises only evidentiary objections.

Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013] see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 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 dismissal after trial proper because the insurer's doctor's testimony on medical necessity was properly admitted over a hearsay objection and the provider did not challenge its substance.

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.

Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.
Alrof, Inc. v Progressive Ins. Co. (2011 NY Slip Op 21419) FollowedAn insurer need not prove medical records reliable when its expert assumes their contents true in disputing medical necessity.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) FollowedThe insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))A peer review report is inadmissible at trial to prove lack of medical necessity, which must be resolved through medical expert testimony.

Similar decisions

Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51995(U))The provider's doctor's affirmation failed to rebut the insurer's peer review on the medical necessity of the supplies.
Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))The provider's action was premature because the insurer had not received all verification requested before suit commenced.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U))The insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
Alev Med. Supply, Inc. v Geico Gen. Ins. Co. (2013 NY Slip Op 51915(U))The provider was denied an opportunity to introduce claim forms and elicit nonpayment testimony before judgment was directed against it.