May 22, 2009

Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51031(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-new-york-cent-mut-fire-ins-co-2009-ny-slip-op51031u/

Court: Appellate Term, Second Department
Decided: May 22, 2009
Citation: 2009 NY Slip Op 51031(U) · 23 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity (see the maps)

Cite as

Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co., 23 Misc 3d 141(A), 2009 NY Slip Op 51031(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 inconsistent affidavit about claim receipt and disputed peer review signatures defeated summary judgment on medical necessity. The claims representative asserted both nonreceipt before suit and receipt on specified dates before suit followed by timely denials. That inconsistency defeated the insurer's prima facie showing. Independently, apparently identical signatures on the affirmed peer review reports raised a factual question about compliance with CPLR 2106, considered with General Construction Law § 46. The provider raised that objection both below and on appeal, and the signature issue could not be resolved on summary judgment. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied its motion.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51031(U))

[*1]

Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 51031(U) [23 Misc 3d 141(A)]

Decided on May 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-869 K C.

Vista Surgical Supplies, Inc., a/a/o Luz Deleon, Appellant,
against
New York Central Mutual Fire Insurance 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 March 25, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant’s claims representative failed to demonstrate defendant’s prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In any event, as argued by plaintiff in the Civil Court and on appeal, the affirmed peer review reports defendant submitted in support of its motion for summary judgment indicate that [*2]the “signature” upon each report appears to be identical, thereby raising an issue of fact as to whether the purported signatures were in compliance with CPLR 2106 (see General Construction Law § 46; Mani Med., P.C. v Eveready Ins. Co., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U] [App Term, 2d & 11th Jud Dists 2008]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 702 [Sup Ct, NY County 1965]). Such issue of fact may not be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U]). Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited) (rules on the question, but another ground decided the case)

Held, as an additional ground, that the apparently identical signatures on the affirmed peer reviews raised an issue under CPLR 2106, so the insurer's motion on lack of medical necessity had to be denied.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Similar decisions

Vista Surgical Supplies, Inc. v American Protection Ins. Co. (2008 NY Slip Op 51229(U))The insurer's unrebutted peer review established that the medical supplies were unnecessary and supported dismissal of the provider's claims.
Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50739(U))A denial form is not invalid for omitting irrelevant sections if it is approved and specifically identifies the medical-necessity defense.
Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2008 NY Slip Op 50524(U))The provider failed to establish its prima facie case because its officer's affidavit lacked a foundation for the billing records.
Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U))The insurer's peer reviews bearing stamped facsimile signatures were inadmissible under CPLR 2106 on the record presented.