April 13, 2010

Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))

https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-clarendon-natl-ins-co-2010-ny-slip-op50700u/

Court: Appellate Term, Second Department
Decided: April 13, 2010
Citation: 2010 NY Slip Op 50700(U) · 27 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 6 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132(A), 2010 NY Slip Op 50700(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint. The Civil Court had found under CPLR 3212 (g) that the provider submitted its claims and the insurer timely denied them, leaving medical necessity for trial. The provider argued that the report merely raised a triable issue. The appellate court instead held that a report supplying a factual basis and medical rationale established the insurer's prima facie defense and shifted the burden to the provider. Because the provider did not rebut that evidence, no trial was required.

Reported in New York Official Reports at Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))

[*1]

Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co.

2010 NY Slip Op 50700(U) [27 Misc 3d 132(A)]

Decided on April 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2009-401 Q C.

Alur Medical Supply, Inc. as assignee of KATHERINE CASTELLANOS, Respondent,
against
Clarendon National Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy Dufficy, J.), entered December 17, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding, pursuant to CPLR 3212 (g), that plaintiff had proved the submission of its claim forms and that defendant had demonstrated that it had timely denied the claims based upon a peer review report, and declaring that medical necessity remained the sole issue for trial.

Defendant appeals from so much of the order as denied its cross motion for summary judgment, arguing that it established prima facie that the supplies billed for were not medically necessary and that plaintiff failed to rebut that showing. Plaintiff concedes the timeliness of defendant’s denials and that defendant’s affirmed peer review report raises a triable issue of fact as to medical necessity, but argues that the matter should not be resolved on a motion for summary judgment because a triable issue as to medical necessity exists.

Contrary to plaintiff’s contentions, once defendant submitted an affirmed peer review report that set forth a factual basis and medical rationale for its peer reviewer’s opinion that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question, shifting the burden to plaintiff to rebut defendant’s showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut defendant’s evidence, defendant was entitled to summary judgment, and its cross motion should have been granted (see e.g. 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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 13, 2010

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

Held an affirmed peer review report with a factual basis and medical rationale established lack of medical necessity prima facie and shifted the burden; the provider, conceding only a triable issue, offered no rebuttal, so the insurer won.

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.

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
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.

Cited by

A label shows how the later decision treated this one.

Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U)) FollowedThe provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U)) FollowedThe insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
Alfa Medical Supplies, Inc.. v Auto One Ins. Co. (2011 NY Slip Op 51851(U)) FollowedA peer review report is not inadmissible merely because the reviewer considered medical records from other providers.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U)) FollowedThe insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U)) FollowedA peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U)) FollowedThe provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion.
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.
Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)An insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.

Similar decisions

Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.
Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))The insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim.
ALROF, Inc. v Praetorian Ins. Co. (2011 NY Slip Op 52372(U))The insurer's sworn peer review reports established lack of medical necessity for supplies, and the provider failed to rebut their conclusions.
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 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.