July 22, 2010
Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 51332(U))
https://www.beynensonlaw.com/case-law/alfa-med-supplies-inc-v-geico-gen-ins-co-2010-ny-slip-op51332u/
- Decided
- July 22, 2010
- Citation
- 2010 NY Slip Op 51332(U) · 28 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 51332(U))
| Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. |
| 2010 NY Slip Op 51332(U) [28 Misc 3d 132(A)] |
| Decided on July 22, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1141 K C. NO. 2007-1141 K C
against
GEICO General Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered January 8, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment as to plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. The appeal is deemed from a judgment of the same court entered May 25, 2007 which awarded plaintiff the principal sum of $2,295 (see CPLR 5501 [c]).
ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment as to plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto is vacated and plaintiff’s motion for summary judgment as to said claims is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that there was a lack of medical necessity for the supplies provided to plaintiff’s assignors. The Civil Court granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. This appeal by defendant ensued. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).
Contrary to defendant’s contention, the affidavit of plaintiff’s employee was sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 [*2]Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5102 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).
In opposition to plaintiff’s motion, defendant established that it had timely denied the claims at issue on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant annexed to its opposing papers affirmed peer review reports, which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the supplies at issue, which evidence was unrebutted. In view of the foregoing, and as plaintiff’s remaining contentions lack merit (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), plaintiff’s motion for summary judgment as to its claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto should have been denied.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs in the result only, in the following memorandum:
While I agree with the ultimate decision reached by the majority, I wish to note that I do not
agree with certain propositions of law set forth in cases cited therein which are inconsistent with
my expressed position and generally contrary to my views.
Decision Date: July 22, 2010
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win
Held the provider's motion should have been denied because the insurer's affirmed peer review reports set forth a factual basis and medical rationale for lack of medical necessity and were unrebutted.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
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)
Held the provider made its prima facie case because its employee's affidavit laid a CPLR 4518 foundation for the annexed documents and showed submission of the claim forms and overdue payment.
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.
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 it timely denied the claims for lack of medical necessity, so its defense was not precluded.
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
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- 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.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Similar decisions
- Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion.
- Alfa Med. Supplies v Utica Mut. Ins. Co. (2012 NY Slip Op 51890(U))The insurer raised a medical-necessity issue on one claim but failed to establish timely denial of the other assignor's claim.
- Alfa Med. Supplies v Progressive Northeastern Ins. Co. (2010 NY Slip Op 51733(U))The insurer established full payment of one claim and an unrebutted medical necessity defense to the remaining claim.
- Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U))The insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
- 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.