October 18, 2011

Trimed Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 51880(U))

https://www.beynensonlaw.com/case-law/trimed-med-supply-inc-v-american-tr-ins-co-2011-ny-slip-op51880u/

Court: Appellate Term, Second Department
Decided: October 18, 2011
Citation: 2011 NY Slip Op 51880(U) · 33 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Timeliness and preclusion Discovery and procedure
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131(A), 2011 NY Slip Op 51880(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 established lack of medical necessity for three claims, but a factual issue remained over the fourth claim's late submission. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing three supply claims on an unrebutted affirmed peer review providing a factual basis and medical rationale. The insurer established timely mailing of its denials. Dismissal of the fourth claim remained denied because, although submitted beyond 45 days, the provider offered an explanation under 11 NYCRR 65-3.3 (e) whose reasonableness presented a factual issue. Denial of the provider's preclusion and summary judgment motion was affirmed: discovery responses served less than a week late did not warrant preclusion under the circumstances.

Reported in New York Official Reports at Trimed Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 51880(U))

[*1]

Trimed Med. Supply, Inc. v American Tr. Ins. Co.

2011 NY Slip Op 51880(U) [33 Misc 3d 131(A)]

Decided on October 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1376 K C.

Trimed Medical Supply, Inc. as Assignee of ANGELIQUE WHITE, Appellant-Respondent,
against
American Transit Insurance Co., Respondent-Appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 1, 2010. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for an order of preclusion and for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for an order of preclusion and for summary judgment, and denied defendant’s cross motion for summary judgment dismissing the complaint. Both parties appeal.

As defendant served discovery responses less than one week later than required by a so-ordered discovery stipulation, we find, under the totality of the circumstances presented, that the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from offering evidence in this matter and in denying the branch of plaintiff’s motion seeking summary judgment (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2007]).

With respect to defendant’s cross motion for summary judgment dismissing the complaint, we find that defendant demonstrated that its claim denial forms were timely mailed in accordance with defendant’s standard office practices and procedures (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]). As to the claims for $341.34, $195.50 and $795, defendant submitted an affirmed peer review report which [*2]set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing was not rebutted by plaintiff. Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted as to these claims (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]).

The papers submitted in support of defendant’s cross motion indicate that, while plaintiff’s claim for $178 was not submitted within 45 days of the provision of the equipment at issue, plaintiff offered an explanation for the claim’s untimeliness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), and there is an issue of fact as to the reasonableness of that explanation (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant’s cross motion for summary judgment was properly denied as to this claim.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 2011

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

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 affirmed peer review set forth a factual basis and medical rationale for lack of medical necessity of the supplies on three claims, and the provider did not rebut it, so those claims were dismissed.

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.

Proof of mailing

Open the full map

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 showed its claim denial forms were timely mailed in accordance with its standard office practices and procedures, a finding that supported its cross motion decided on 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.

Cited by

Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.

Similar decisions

Trimed Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52014(U))The insurer's unrebutted peer review established that the supplies lacked medical necessity and warranted summary judgment.
Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51888(U))The insurer established lack of medical necessity for two supply claims but failed to establish timely denial of a third claim.
TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50346(U))The insurer's late denial barred its medical-necessity defense to the first claim, but unrebutted peer review defeated the second.