September 28, 2012

Alfa Med. Supplies v Utica Mut. Ins. Co. (2012 NY Slip Op 51890(U))

https://www.beynensonlaw.com/case-law/alfa-med-supplies-v-utica-mut-ins-co-2012-ny-slip-op-51890u/

Court: Appellate Term, Second Department
Decided: September 28, 2012
Citation: 2012 NY Slip Op 51890(U) · 37 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Alfa Med. Supplies v Utica Mut. Ins. Co., 37 Misc 3d 127(A), 2012 NY Slip Op 51890(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 insurer raised a medical-necessity issue on one claim but failed to establish timely denial of the other assignor's claim. An affidavit established timely denial of the first claim, and an affirmed peer review warranted denial of provider summary judgment on that claim. For the other claim, the insurer's denial showed issuance more than 30 days after receipt, and the insurer demonstrated no proper tolling under 11 NYCRR 65-3.8. It therefore failed to establish that its defenses escaped preclusion. The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting provider summary judgment on the timely-denied claim, and denied that branch of the motion; summary judgment on the untimely-denied claim remained undisturbed.

Reported in New York Official Reports at Alfa Med. Supplies v Utica Mut. Ins. Co. (2012 NY Slip Op 51890(U))

[*1]

Alfa Med. Supplies v Utica Mut. Ins. Co.

2012 NY Slip Op 51890(U) [37 Misc 3d 127(A)]

Decided on September 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1964 K C.

Alfa Medical Supplies as Assignee of JOSE CAYETANO and ARGENIS PLATA-GIL, Respondent, —
against
Utica Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009, deemed from a judgment of the same court entered January 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,949.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment established that defendant had timely denied the claim for $2,199 for supplies provided to Jose Cayetano on the ground of lack of medical necessity (see St. Vincent’s Hosp. of [*2]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]). Moreover, defendant annexed to its opposition papers an affirmed peer review report which was sufficient to demonstrate that the branch of plaintiff’s motion seeking summary judgment on its $2,199 claim should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

As to plaintiff’s claim for $1,750 for supplies provided to Argenis Plata-Gil, the denial submitted by defendant in opposition to plaintiff’s motion showed that defendant received the claim on January 29, 2007, but did not deny the claim until October 1, 2007, more than 30 days after the claim had been received (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Defendant failed to demonstrate proper tolling of this claim. Accordingly, defendant did not establish that its denial was timely and, thus, that it is not precluded from raising its proffered defenses as to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant’s remaining contention lacks merit.

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: September 28, 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.

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 was enough to defeat the provider's motion but not to win

Held the insurer's affirmed peer review, annexed to its opposition, was sufficient to require denial of the provider's summary judgment motion on the $2,199 supply claim.

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, 67 (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 affidavit established that it timely denied the $2,199 claim on the ground of 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

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.

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 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 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.
Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))The insurer's unrebutted peer review report established that the medical supplies lacked medical necessity.
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.