June 4, 2010

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))

https://www.beynensonlaw.com/case-law/ortho-med-surgical-supply-inc-v-progressive-cas-ins-co-2010-ny-slip-op50997u/

Court: Appellate Term, Second Department
Decided: June 4, 2010
Citation: 2010 NY Slip Op 50997(U) · 27 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141(A), 2010 NY Slip Op 50997(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue. The insurer supported its summary judgment motion with proof of timely denial and an affirmed peer review supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider asserted that it lacked information and documents used by the peer reviewer and needed them to oppose the motion under CPLR 3212 (f). It did not demonstrate that discovery was necessary to show a triable factual issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))

[*1]

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co.

2010 NY Slip Op 50997(U) [27 Misc 3d 141(A)]

Decided on June 4, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-929 K C.

Ortho-Med Surgical Supply, Inc. a/a/o LINDA McCOLLUM, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 13, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the supplies provided to plaintiff’s assignor were not medically necessary. The Civil Court granted the motion, finding that plaintiff’s opposition papers failed to rebut defendant’s showing that the supplies provided were not medically necessary. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for the supplies provided (see 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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for [*2]summary judgment dismissing the complaint was properly 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]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

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, and the provider failed to rebut it or show under CPLR 3212 (f) that discovery of the reviewer's records was needed.

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 established timely mailing of the medical-necessity denial as part of its prima facie showing.

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.

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.
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.
Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U)) FollowedThe insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission.
Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))The provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment.
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.

Cited by

A label shows how the later decision treated this one.

Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U)) FollowedThe insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
Life Equip., Inc v Mid-Century Ins Co (2022 NY Slip Op 50877(U)) FollowedThe insurer's timely denials defeated the provider's request for judgment despite insufficient proof of the IME no-show defense.
Longevity Med. Supply, Inc. v Progressive Ins. Co. (2020 NY Slip Op 20137)Timely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient.

Similar decisions

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2009 NY Slip Op 50731(U))The provider failed to rebut the insurer's IME proof that the supplied items were not medically necessary.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion.
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.