April 16, 2009

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U))

https://www.beynensonlaw.com/case-law/dilon-med-supply-corp-v-travelers-ins-co-2009-ny-slip-op-50737u/

Court: Appellate Term, Second Department
Decided: April 16, 2009
Citation: 2009 NY Slip Op 50737(U) · 23 Misc 3d 132(A)
Posture: Trial
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Dilon Med. Supply Corp. v Travelers Ins. Co., 23 Misc 3d 132(A), 2009 NY Slip Op 50737(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 credited peer-review testimony established lack of medical necessity for the supplies, and the provider offered no rebuttal. The parties stipulated to the provider's prima facie case and mailing of the verification requests and denials, leaving medical necessity as the sole trial issue. After a nonjury trial, the Civil Court dismissed the complaint. The Appellate Term, Second Department, affirmed the judgment for the insurer. Applying the fair-interpretation-of-the-evidence standard, it found no basis to disturb the trial court's determination because the insurer's expert testimony established the defense and the provider offered no evidence that the supplies were medically necessary.

Reported in New York Official Reports at Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U))

[*1]

Dilon Med. Supply Corp. v Travelers Ins. Co.

2009 NY Slip Op 50737(U) [23 Misc 3d 132(A)]

Decided on April 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2008-96 Q C.

Dilon Medical Supply Corp. a/a/o JOSEPH CHENET, Appellant,
against
Travelers Insurance Co., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated November 2, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that plaintiff proved its prima facie case, and that defendant’s requests for verification and denial of claim forms were all mailed on the days which they were dated. The sole issue at trial was the medical necessity of the supplies which were provided to the assignor. Defendant’s expert medical witness, who had performed a peer review on defendant’s behalf, testified that the durable goods which were provided to plaintiff’s assignor were not medically necessary. In a decision dated November 2, 2005, the Civil Court found in favor of defendant and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). The testimony of defendant’s peer review doctor, which the trial court credited, established that there was a lack of medical necessity for the supplies issued to plaintiff’s assignor. Inasmuch as plaintiff failed to offer any rebuttal evidence to show that the supplies were medically necessary, we find that the trial court’s determination was based on a fair interpretation of the evidence. Accordingly, the judgment dismissing the complaint is affirmed. [*2]

Weston Patterson, J.P., Golia and Rios, JJ., concur.

Decision Date: April 16, 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 proof established lack of medical necessity and the provider failed to rebut it

Affirmed dismissal after trial because the credited testimony of the insurer's peer review doctor established lack of medical necessity for the supplies and the provider offered no rebuttal evidence.

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

Cited by

A label shows how the later decision treated this one.

Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co. (2014 NY Slip Op 51786(U)) FollowedThe insurer failed to offer trial evidence on timely EUO notices and denials after stipulating to the provider's prima facie case.

Similar decisions

Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U))An insurer may call a substitute medical expert, subject to cross-examination, to address the original peer reviews' rationale.
Dilon Med. Supply Corp. v Progressive Cas. Ins. Co. (2006 NY Slip Op 50908(U))The insurer failed to show tolling by EUO requests because it did not establish an EUO endorsement in the applicable policy.
All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here.
Dilon Med. Supply Corp. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51344(U))An insurer's fraud defense based on excessive billing or lack of medical necessity is subject to the 30-day denial preclusion rule.
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.