April 16, 2009

Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U))

https://www.beynensonlaw.com/case-law/velen-med-supply-inc-v-geico-ins-co-2009-ny-slip-op-50735u/

Court: Appellate Term, Second Department
Decided: April 16, 2009
Citation: 2009 NY Slip Op 50735(U) · 23 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132(A), 2009 NY Slip Op 50735(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 review raised a medical-necessity issue, and the provider waived its objection to the stamped signature. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. The claims employee's affidavit established timely mailing of the denial through standard office procedures, and the peer review supplied admissible evidence that the supplies were unnecessary. The provider's signature objection was raised for the first time on appeal and was waived. The majority did not review the provider's prima facie case because the insurer did not challenge it; a separate concurrence in the result maintained that appellate courts should always consider whether that showing was made.

Reported in New York Official Reports at Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U))

[*1]

Velen Med. Supply, Inc. v GEICO Ins. Co.

2009 NY Slip Op 50735(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This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and GOLIA, JJ
2007-745 K C. NO. 2007-745 K C

Velen Medical Supply, Inc. a/a/o THOMAS SANDOVAL, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 17, 2007, deemed from a judgment of the same court entered April 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 17, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $815.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claim on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, finding that plaintiff had established a prima facie case and that defendant had failed to raise a triable issue of fact. This appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the Civil Court’s determination with respect thereto.

The affidavit submitted by defendant’s claims employee was sufficient to establish that defendant’s denial of claim form, which denied plaintiff’s claim based upon a peer review report, was timely mailed in accordance with defendant’s standard office practice and procedure (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]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affirmed peer [*2]review report, which set forth the physician’s opinion that the medical supplies at issue were medically unnecessary. 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 A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists2007]).

Plaintiff’s contention that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, raised for the first time on appeal, was waived (see Dowling v Mosey, 32 AD3d 1190 [2006]; 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]; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]).

Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J. and Weston, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51501[U] [App Term, 2d & 11th Jud Dists 2008]), an appellate court “should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).
Decision Date: April 16, 2009

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

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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 raised a triable issue of medical necessity, so the provider's summary judgment was vacated; the facsimile-signature objection was waived because first raised on appeal.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

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 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 claims employee's affidavit established timely mailing of the peer-review-based denial under the insurer's standard office practice, in opposition to the provider's motion.

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.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U)) FollowedThe insurer's unrebutted peer review established lack of medical necessity for two claims, but it failed to prove another charge excessive.
Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2008 NY Slip Op 03199) Contrasted (cf., but see)The insurer's peer review reports were inadmissible because their facsimile signatures lacked evidence of placement or authorization.
Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U)) Contrasted (cf., but see)The insurer's peer review reports were inadmissible because it did not show that the reviewing doctor placed the stamped signatures on them.

Cited by

A label shows how the later decision treated this one.

Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.
Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U)) FollowedThe 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.
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.

Similar decisions

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51858(U))The insurer's chiropractor supplied a factual basis and medical rationale raising a triable issue of medical necessity.
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.
New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))The insurer's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered.
Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50868(U))The provider's medical affidavit failed to rebut the insurer's peer review showing that the disputed supply lacked medical necessity.
Velen Med. Supply, Inc. v Country-Wide Ins. Co. (2009 NY Slip Op 50343(U))The provider's billing-manager affidavit failed to establish a business-record foundation for the documents supporting summary judgment.