October 15, 2013

Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 51759(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-travelers-home-mar-ins-co-2013-ny-slip-op51759u/

Court: Appellate Term, Second Department
Decided: October 15, 2013
Citation: 2013 NY Slip Op 51759(U) · 41 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co., 41 Misc 3d 132(A), 2013 NY Slip Op 51759(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 unsupported claim that a peer review bore a stamped signature failed to raise a factual issue about admissibility. The Civil Court granted the insurer summary judgment on its lack-of-medical-necessity defense, finding the insurer's prima facie showing unrebutted. The provider's sole argument below and on appeal was that the peer review report was inadmissible because its signature was stamped. Without any explanation for that belief, the assertion did not raise an issue of fact under Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. The Appellate Term, Second Department, deemed the appeal taken from the ensuing judgment under CPLR 5501 (c) and affirmed dismissal of the complaint.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 51759(U))

[*1]

Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co.

2013 NY Slip Op 51759(U) [41 Misc 3d 132(A)]

Decided on October 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3167 Q C.

Alev Medical Supply, Inc. as Assignee of MARIA ONATIVIA, Appellant, —
against
Travelers Home & Marine Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 6, 2011, deemed from a judgment of the same court entered November 29, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 6, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint, finding that defendant had demonstrated, prima facie, its lack of medical necessity defense and that plaintiff had not rebutted defendant’s prima facie showing. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s only argument, both before the Civil Court and on appeal, is that the peer review report relied upon by defendant contained a stamped signature and, as a result, it was inadmissible. We find that plaintiff’s assertion, without any indication as to why plaintiff believed that the signature was a stamped signature, was insufficient to raise an issue of fact (see Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 127[A], 2011 NY Slip Op 51230[U] [App Term, 2d, 11th & 13th Jud Dists]). Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013

Legal questions

A question 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

Affirmed summary judgment for the insurer because the provider's only challenge, an unsupported claim that the peer review bore a stamped signature, was insufficient to raise an issue of fact against the insurer's showing.

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.

Cited in this decision

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

Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51230(U)) FollowedThe insurer established lack of medical necessity on two claims and the assignor's IME nonappearance on the third.

Similar decisions

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.
Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51999(U))The provider's doctor's affirmation failed to rebut the insurer's peer review finding that the medical supplies lacked medical necessity.
Med-Tech Prods., Inc. v Statewide Ins. Co. (2012 NY Slip Op 50584(U))The provider's challenge to allegedly stamped signatures on peer reviews required a hearing to determine the reports' admissibility.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 51765(U))The provider's challenge to facsimile signatures failed because the peer reviewers placed the signatures on their reports or directed their placement.
Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U))The insurer's peer reviews bearing stamped facsimile signatures were inadmissible under CPLR 2106 on the record presented.