October 12, 2011

Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U))

Headnote

The court considered the timely mailing and medical rationale of denial of claim forms, as well as affirmed peer review reports to establish a lack of medical necessity for the medical equipment in question. The main issue was whether the denial of claim forms were timely submitted and whether the peer review reports provided a factual basis and medical rationale for the lack of medical necessity. The holding was that the denial of claim forms were timely submitted and the peer review reports provided the necessary rationale for the lack of medical necessity, shifting the burden to the plaintiff to rebut the defendant's showing, which the plaintiff failed to do. Therefore, the defendant's cross motion for summary judgment was properly granted and the complaint was dismissed.

Reported in New York Official Reports at Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U))

Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U)) [*1]

Alfa Medical Supplies, Inc. v Auto One Ins. Co.

2011 NY Slip Op 51851(U) [33 Misc 3d 128(A)]

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-160 K C. Alfa Medical Supplies, Inc. as Assignee of JOEL ORTIZ and LILIANA ORTIZ, Appellant, -against-

against
Auto One Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, affidavits of its no-fault litigation examiner/specialist and its office services manager, which were sufficient to establish that the denial of claim forms, which had denied the claims at issue on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practices and procedures (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]).

Defendant also submitted two affirmed peer review reports which provided a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the medical equipment provided to plaintiff’s assignors (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 [*2]128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Contrary to plaintiff’s assertion, the fact that the peer reviewer took into consideration medical records of other providers in formulating his opinion did not render the peer review reports inadmissible (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]). Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). As plaintiff failed to do so, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint (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 affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011