February 21, 2008

Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50346(U))

https://www.beynensonlaw.com/case-law/be-well-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2008-ny-slip-op50346u/

Court: Appellate Term, Second Department
Decided: February 21, 2008
Citation: 2008 NY Slip Op 50346(U) · 18 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion 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

Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139(A), 2008 NY Slip Op 50346(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 late denial barred its medical-necessity defense to the first claim, but unrebutted peer review defeated the second. The Appellate Term, Second Department, reversed the judgment, vacated summary judgment for the provider on the second cause of action, and granted the insurer summary judgment dismissing it. The first claim's denial was mailed 31 days after verification was received, precluding the defense under 11 NYCRR 65.15 (g), now 11 NYCRR 65-3.8. The second denial timely invoked peer review, and the provider offered no medical rebuttal. The court rejected requiring a prescription as part of the provider's prima facie case, leaving other aspects unreviewed. It remanded to calculate interest and attorney's fees on the first claim under Insurance Law § 5106 (a).

Reported in New York Official Reports at Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50346(U))

[*1]

Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 50346(U) [18 Misc 3d 139(A)]

Decided on February 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-2037 Q C

Be Well Medical Supply, Inc. as assignee of Ambiorix Almonte, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 2006, deemed from a judgment entered on September 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 16, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,253.50.

Judgment reversed without costs, so much of the order entered June 16, 2006 as granted plaintiff’s motion for summary judgment upon its second cause of action
vacated, defendant’s cross motion for summary judgment granted to the extent of dismissing the second cause of action, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees upon the remaining sum of $590 awarded plaintiff.

Defendant’s argument that plaintiff did not prove a prima facie case in this action to recover assigned first-party no-fault benefits because plaintiff did not prove that the supplies furnished to plaintiff’s assignor were provided pursuant to a prescription from a health care provider lacks merit. A provider 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 was 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]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto. [*2]

The affidavit submitted by defendant’s litigation examiner was sufficient to give rise to a presumption that the verification requests and denial of claim forms at issue were 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. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the litigation examiner conceded that the verification requested concerning plaintiff’s claim for $590 was received on March 19, 2001 and that the denial of claim form was not mailed until April 19, 2001, thereby rendering the denial of claim form untimely as a matter of law and precluding defendant from interposing a defense of lack of medical necessity as to this claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g], now [11 NYCRR] § 65-3.8). In light of the foregoing, plaintiff was entitled to summary judgment upon its first cause of action.

Defendant’s timely denial of claim form as to the claim for $1,663.50 stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary. Such a denial of claim form is sufficient to avoid preclusion of the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant annexed an affirmed peer review report which found that the supplies at issue were not medically necessary, thereby establishing defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s second cause of action. Inasmuch as plaintiff offered no medical evidence to rebut defendant’s prima facie case, plaintiff’s motion for summary judgment on its second cause of action should have been denied and defendant should have been granted summary judgment dismissing said cause of action (see A Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $590 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 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.

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 established lack of medical necessity and the provider failed to rebut it

Held the insurer's affirmed peer review established prima facie that the supplies were not medically necessary, and the provider offered no medical evidence in rebuttal, so the insurer was granted judgment on that claim.

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, 315 (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)

Rejected the insurer's argument that the provider had to prove the supplies were furnished under a prescription, since submission of the claim form and overdue payment suffice.

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 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 litigation examiner's affidavit raised a presumption that the verification requests and denials were mailed under standard office practice, though one admitted mailing date made that denial untimely.

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.

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.
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 Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) FollowedAn insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

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.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
I & B Surgical Supply v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27159)The provider's late cross motion and opposition were improperly considered because the insurer lacked an opportunity to respond.
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.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.