February 19, 2013

Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50260(U))

https://www.beynensonlaw.com/case-law/sky-med-supply-inc-v-geico-gen-ins-co-2013-ny-slip-op50260u/

Court: Appellate Term, Second Department
Decided: February 19, 2013
Citation: 2013 NY Slip Op 50260(U) · 38 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Sky Med. Supply, Inc. v GEICO Gen. Ins. Co., 38 Misc 3d 143(A), 2013 NY Slip Op 50260(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 unrebutted chiropractic peer reviews established that the disputed supplies lacked medical necessity. Civil Court denied both parties' summary judgment applications, found timely and proper denial, and limited trial to medical necessity. On appeal, the insurer's affidavits and peer review reports supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider did not rebut that showing or challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint, reaching no other issue.

Reported in New York Official Reports at Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50260(U))

[*1]

Sky Med. Supply, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50260(U) [38 Misc 3d 143(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1963 K C.

Sky Medical Supply, Inc. as Assignee of MAUREEN WILLIAMS and ANOINE-PIERRE NARSELINE, Respondent, —
against
GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 16, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon denying plaintiff’s motion for summary judgment, found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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. The Civil Court denied both the motion and the cross motion, but found that plaintiff had established its prima facie case; that defendant had demonstrated that it had timely and properly denied plaintiff’s claim; and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and as found that plaintiff had [*2]established its prima facie case.

In support of its cross motion, defendant submitted, among other things, affidavits and peer review reports by its chiropractors which set forth a factual basis and medical rationale for the chiropractors’ determinations that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v 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]). In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013

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

Granted the insurer summary judgment because its chiropractors' affidavits and peer reviews set forth a factual basis and medical rationale for lack of medical necessity of the supplies, unrebutted by the provider.

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

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The 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))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50050(U))The insurer's chiropractor/acupuncturist's affidavit and peer review established lack of medical necessity, and the provider did not rebut them.
New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))The insurer's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered.
Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2015 NY Slip Op 50391(U))The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's peer-review conclusions that the supplies were unnecessary.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.
High Quality Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 52373(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them.