April 29, 2008
Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U))
https://www.beynensonlaw.com/case-law/med-tech-prod-inc-v-liberty-mut-ins-co-2008-ny-slip-op-51469u/
- Decided
- April 29, 2008
- Citation
- 2008 NY Slip Op 51469(U) · 20 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U))
| Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. |
| 2008 NY Slip Op 51469(U) [20 Misc 3d 133(A)] |
| Decided on April 29, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1898 K C.
against
Liberty Mutual Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered July 7, 2006. The order denied plaintiff’s motion for summary judgment.Order affirmed without costs.
In an action to recover assigned first-party no-fault benefits, a plaintiff generally
establishes its prima facie entitlement to summary judgment by proof of the submission of a
statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment
of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary
Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2
Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In the
instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended
NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers,
acknowledged receipt of the claim on December 30, 2004, both in the affidavit of defendant’s
claims representative as well as in its denial of claim form, the deficiency in plaintiff’s moving
papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, D.C., P.C. v State Farm
Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore,
shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]).
In opposition, defendant established that it timely denied plaintiff’s claim on the ground of
lack of medical necessity (see Delta
Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d &
11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant’s
opposing papers sets forth a
sufficient factual basis and medical rationale to demonstrate the existence of an issue of
fact as to medical necessity (see A.B.
Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists
2007]), plaintiff’s motion for summary judgment was properly denied (id.).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008
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.
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 set forth a sufficient factual basis and medical rationale to raise an issue of fact as to medical necessity, so the provider's motion was properly denied.
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.
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's deficient proof of mailing was cured by the insurer's acknowledgment of receipt in its claims affidavit and denial form, so the prima facie burden was met and shifted to the insurer.
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.
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 the provider's papers did not prove mailing of the claim form, but the insurer's acknowledgment of receipt in its affidavit and denial cured the defect; the insurer's timely denial was also established.
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.
- 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.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- 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.
- 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.
Similar decisions
- Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))The insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.
- Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
- Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.
- Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.
- All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51417(U))The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary.