November 26, 2013

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

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-praetorian-ins-co-2013-ny-slip-op51999u/

Court: Appellate Term, Second Department
Decided: November 26, 2013
Citation: 2013 NY Slip Op 51999(U) · 41 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

Alev Med. Supply, Inc. v Praetorian Ins. Co., 41 Misc 3d 139(A), 2013 NY Slip Op 51999(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 doctor's affirmation failed to rebut the insurer's peer review finding that the medical supplies lacked medical necessity. The insurer moved for summary judgment dismissing the assigned no-fault claims and established timely mailing of its denials. Its sworn peer review supplied a factual basis and medical rationale for the determination that the supplies were unnecessary. The opposing doctor's affirmation did not meaningfully address the peer review's conclusions and therefore failed to raise a triable issue under Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

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

Held the sworn peer review set forth a factual basis and medical rationale, and the provider's doctor's affirmation failed to meaningfully refer to or rebut it, so the insurer won summary judgment.

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's papers sufficiently established timely mailing of its denial of claim forms based on lack of medical necessity.

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.

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.
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.
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.
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

Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))The provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.
Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony.
ALROF, Inc. v Praetorian Ins. Co. (2011 NY Slip Op 52372(U))The insurer's sworn peer review reports established lack of medical necessity for supplies, and the provider failed to rebut their conclusions.
Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U))A peer review report is not inadmissible merely because the reviewer considered medical records from other providers.
Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 51759(U))The provider's unsupported claim that a peer review bore a stamped signature failed to raise a factual issue about admissibility.