October 13, 2009

Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))

https://www.beynensonlaw.com/case-law/med-tech-prods-inc-v-geico-ins-co-2009-ny-slip-op-52111u/

Court: Appellate Term, Second Department
Decided: October 13, 2009
Citation: 2009 NY Slip Op 52111(U) · 25 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Provider's prima facie case
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Med-Tech Prods., Inc. v Geico Ins. Co., 25 Misc 3d 129(A), 2009 NY Slip Op 52111(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors. The provider established admissible business records under CPLR 4518 through affidavits of its president and records custodian. The insurer's denials acknowledged receipt of the claims, curing any deficiency in mailing proof, and the provider established overdue benefits under Insurance Law § 5106 (a). The insurer's timely denials and peer reviews supplied factual bases and medical rationales for disputing necessity. The provider waived its admissibility challenge to the reviews by first raising it on appeal. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and declined to search the record to award the insurer summary judgment.

Reported in New York Official Reports at Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))

[*1]

Med-Tech Prods., Inc. v Geico Ins. Co.

2009 NY Slip Op 52111(U) [25 Misc 3d 129(A)]

Decided on October 13, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1358 Q C.

Med-Tech Products, Inc. a/a/o LAVLY RAHMAN and JAHEDUR RAHMAN, Appellant,
against
Geico Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), dated June 20, 2008. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that the equipment provided to plaintiff’s assignors was not medically
necessary. The Civil Court denied plaintiff’s motion, finding that there was a triable issue regarding medical necessity. The instant appeal by plaintiff ensued.

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

To the extent defendant asks this court to search the record and grant it summary judgment dismissing the complaint, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst., 39 AD3d 832).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009

Legal questions (3)

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: Insurer's proof was enough to defeat the provider's motion but not to win

Held the insurer's affirmed peer review reports with a factual basis and medical rationale raised a triable issue as to medical necessity; treated the admissibility objection as waived and declined to search the record.

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

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider made its prima facie case because its president's affidavits laid a CPLR 4518 foundation and the insurer's denials acknowledging receipt cured any gap in proof of mailing.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held any deficiency in the provider's proof of mailing the claim forms was cured by the insurer's denial forms acknowledging receipt, as the insurer conceded.

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

Cited in this decision

A label shows how this decision treated the case it cites.

Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
Quality Health Prods., P.C. v Progressive Ins. Co. (2008 NY Slip Op 51757(U))The insurer failed to prove IME nonappearance on two claims, but its peer review raised a medical-necessity issue on the third.
Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U)) FollowedThe insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U))The insurer's unrebutted peer review established lack of medical necessity for two claims, but it failed to prove another charge excessive.

Cited by

A label shows how the later decision treated this one.

Laperla Supply, Inc. v Progressive Northwestern Ins. Co. (2010 NY Slip Op 50586(U)) FollowedThe insurer's unrebutted affirmed peer review report established that the supplies were medically unnecessary and warranted dismissal.

Similar decisions

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U))The insurer's affirmed peer review raised a triable issue concerning the medical necessity of the MRIs. The provider sought summary judgment for assigned no-fault benefits.
Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U))The insurer's affirmed peer review raised a medical-necessity issue, defeating the provider's summary judgment motion.
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.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.