November 26, 2013

Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51999(U))

Headnote

The relevant facts considered by the court in this case were that Alev Medical Supply, Inc. was seeking to recover assigned first-party no-fault benefits, and Praetorian Insurance Company had denied the claims on the grounds of lack of medical necessity for the medical supplies. The main issue decided was whether the denial of claim forms at issue had been timely mailed and whether there was a medical necessity for the medical supplies. The holding of the case was that the court reversed the order of the Civil Court, granting defendant's motion for summary judgment dismissing the complaint, as defendant had timely denied the claims and submitted a sworn peer review report providing medical rationale for the determination of lack of medical necessity. The court found that plaintiff's opposition failed to meaningfully refer to or rebut the conclusions set forth in the peer review report, and therefore the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51999(U))

Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51999(U)) [*1]

Alev Med. Supply, Inc. v Praetorian Ins. Co.

2013 NY Slip Op 51999(U) [41 Misc 3d 139(A)]

Decided on November 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1328 Q C.

Alev Medical Supply, Inc. as Assignee of HANNA DEVON, Respondent, —
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 1, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely denied because the medical supplies at issue were not medically necessary. Defendant appeals from an order of the Civil Court which denied its motion.

The papers submitted by defendant in support of its motion were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supplies at issue. In [*2]opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone 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, 11th & 13th Jud Dists 2009]). Therefore, defendant’s motion for summary judgment dismissing the complaint should have been granted (see A. Khodadadi Radiology, P.C. v NY 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 order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013