January 14, 2013

Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U))

https://www.beynensonlaw.com/case-law/alfa-med-supplies-v-geico-gen-ins-co-2013-ny-slip-op50064u/

Court: Appellate Term, Second Department
Decided: January 14, 2013
Citation: 2013 NY Slip Op 50064(U) · 38 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Alfa Med. Supplies v GEICO Gen. Ins. Co., 38 Misc 3d 134(A), 2013 NY Slip Op 50064(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 provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion. The insurer established timely mailing of its denial and submitted a sworn peer review report providing a factual basis and medical rationale for finding the supplies unnecessary. That showing shifted the burden to the provider. In opposition, the provider's medical affidavit sufficiently demonstrated a question of fact concerning medical necessity. The Appellate Term, Second Department, reversed the judgment dismissing the assigned no-fault claim, vacated the portion of the order granting the insurer summary judgment, and denied the insurer's cross motion.

Reported in New York Official Reports at Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U))

[*1]

Alfa Med. Supplies v GEICO Gen. Ins. Co.

2013 NY Slip Op 50064(U) [38 Misc 3d 134(A)]

Decided on January 14, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through January 22, 2013; it will not be published in the printed Official Reports.

Decided on January 14, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2811 K C.

Alfa Medical Supplies as Assignee of ALTAGRACIA FRANCO, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered September 21, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its cross motion a sworn peer review report which set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the supplies provided (see e.g. 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]). Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v [*2]Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, defendant’s cross motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the sworn peer review shifted the burden to the provider, but the provider's doctor's affidavit raised a question of fact as to medical necessity, so the insurer's cross motion should have been denied.

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, 94 (this one included) are in the same category.

Proof of mailing

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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's affidavit established timely mailing of the denial of claim form based on lack of medical necessity.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U)) FollowedThe insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U)) FollowedThe insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U)) FollowedThe provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.

Similar decisions

Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))The insurer's unrebutted peer review report established that the medical supplies lacked medical necessity.
Alfa Med. Supplies v Utica Mut. Ins. Co. (2012 NY Slip Op 51890(U))The insurer raised a medical-necessity issue on one claim but failed to establish timely denial of the other assignor's claim.
Alfa Med. Supplies v Progressive Northeastern Ins. Co. (2010 NY Slip Op 51733(U))The insurer established full payment of one claim and an unrebutted medical necessity defense to the remaining claim.
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.
Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 51332(U))The insurer's unrebutted peer reviews defeated the provider's summary judgment motion on the three medical-supply claims under review.