July 19, 2019

Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51185(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-erie-ins-co-of-n-y-2019-ny-slip-op51185u/

Court: Appellate Term, Second Department
Decided: July 19, 2019
Citation: 2019 NY Slip Op 51185(U) · 64 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y., 64 Misc 3d 139(A), 2019 NY Slip Op 51185(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 provider's medical affidavit failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer supported its cross motion for summary judgment with proof of timely mailed denials and a sworn peer review report setting forth a factual basis and medical rationale for finding the services unnecessary. The provider's opposing doctor's affidavit did not sufficiently rebut that showing under Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion for summary judgment, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51185(U))

[*1]

Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y.

2019 NY Slip Op 51185(U) [64 Misc 3d 139(A)]

Decided on July 19, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1348 K C

Active Care Medical Supply Corp., as Assignee of Arrington, Michael, Respondent,
against
Erie Insurance Company of New York, Appellant.

Robyn M. Brilliant of counsel, for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2014, deemed from a judgment of that court entered June 22, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 15, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,652.63.

ORDERED that the judgment is reversed, with $30 costs, the order entered February 15, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered February 15, 2014, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. Defendant’s appeal from the February 15, 2014 order is deemed from a judgment that was entered on June 22, 2017 pursuant to the order (see CPLR 5501 [c]).

In support of its cross motion, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St.

Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit from a doctor which failed [*2]to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, the order entered February 15, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019

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

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

Granted the insurer summary judgment because its sworn peer review set out a factual basis and medical rationale, and the provider's doctor's affidavit failed to meaningfully refer to or rebut its conclusions.

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.

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 insurer established that its denial of claim forms based on lack of medical necessity had been timely mailed.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51584(U))The insurer established lack of medical necessity through an unrebutted IME report despite insufficient proof of EUO nonappearance.
Active Care Med. Supply Corp. v American Ind. Ins. Co. (2019 NY Slip Op 51744(U))The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal.
Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))The insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion.
Active Care Med. Supply Corp. v Farmington Cas. Co. (2019 NY Slip Op 50987(U))The provider's second and third causes of action were premature because requested wholesale invoices remained outstanding.
Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.