September 5, 2012

Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 51765(U))

https://www.beynensonlaw.com/case-law/alfa-med-supplies-v-geico-gen-ins-co-2012-ny-slip-op51765u/

Court: Appellate Term, Second Department
Decided: September 5, 2012
Citation: 2012 NY Slip Op 51765(U) · 36 Misc 3d 156(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Alfa Med. Supplies v GEICO Gen. Ins. Co., 36 Misc 3d 156(A), 2012 NY Slip Op 51765(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 challenge to facsimile signatures failed because the peer reviewers placed the signatures on their reports or directed their placement. The insurer established timely mailing of denials asserting lack of medical necessity and submitted three sworn peer review reports supplying factual bases and medical rationales for finding the supplies unnecessary. The provider did not rebut that showing but argued that electronic stamped facsimiles rendered the reports inadmissible. The record established placement by the reviewing doctors or at their direction. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining denial of the provider's summary judgment motion and the grant of the insurer's cross motion.

Reported in New York Official Reports at Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 51765(U))

[*1]

Alfa Med. Supplies v GEICO Gen. Ins. Co.

2012 NY Slip Op 51765(U) [36 Misc 3d 156(A)]

Decided on September 5, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-78 K C.

Alfa Medical Supplies as Assignee of ROBERTO BUENO and MARIA ABREU, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 15, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v [*2]Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted three sworn peer review reports which set forth a factual basis and a medical rationale for each doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the peer review reports contained electronic stamped facsimiles of the peer reviewers’ signatures and, as a result, the reports are inadmissible. However, the record indicates that the signatures were placed on the reports by the doctors who had performed the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. 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]).

As plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]), the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2012

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.

Proof of mailing

Open the full map

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

Rejected the provider's appellate challenge and held the insurer's affidavit established timely mailing of the denial of claim forms.

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.

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

Held three sworn peer reviews with a factual basis and medical rationale made an unrebutted showing, rejecting the stamped-signature objection because the signatures were placed by or at the direction of the reviewing doctors.

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

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.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U))The peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

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.
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.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U))The insurer's unrebutted peer review established lack of medical necessity for two claims, but it failed to prove another charge excessive.
Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. (2010 NY Slip Op 51332(U))The insurer's unrebutted peer reviews defeated the provider's summary judgment motion on the three medical-supply claims under review.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.