December 23, 2011

ALROF, Inc. v Praetorian Ins. Co. (2011 NY Slip Op 52372(U))

https://www.beynensonlaw.com/case-law/alrof-inc-v-praetorian-ins-co-2011-ny-slip-op-52372u/

Court: Appellate Term, Second Department
Decided: December 23, 2011
Citation: 2011 NY Slip Op 52372(U) · 34 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

ALROF, Inc. v Praetorian Ins. Co., 34 Misc 3d 133(A), 2011 NY Slip Op 52372(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 sworn peer review reports established lack of medical necessity for supplies, and the provider failed to rebut their conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. Three reports from a chiropractor supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider's opposing medical affirmation did not meaningfully address those conclusions. Civil Court had designated medical necessity as the sole issue for trial, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment.

Reported in New York Official Reports at ALROF, Inc. v Praetorian Ins. Co. (2011 NY Slip Op 52372(U))

[*1]

ALROF, Inc. v Praetorian Ins. Co.

2011 NY Slip Op 52372(U) [34 Misc 3d 133(A)]

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-1740 K C.

ALROF, Inc. as Assignee of CYRIL LUKE, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 21, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 implicitly denied the motion and cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim, and that the sole issue for trial was defendant’s defense of lack of medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as implicitly denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, three sworn peer [*2]review reports from a chiropractor, each of which set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the medical supplies provided to plaintiff’s assignor. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). 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]).

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., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

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 three sworn chiropractic peer review reports showed lack of necessity for the supplies, and the provider's doctor's affirmation failed to meaningfully refer to or rebut them, so the insurer's cross motion was granted.

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.

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.
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

Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U))A peer review report is not inadmissible merely because the reviewer considered medical records from other providers.
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.
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.
Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
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.