June 12, 2008
Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))
https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-country-wide-ins-co-2008-ny-slip-op51234u/
- Decided
- June 12, 2008
- Citation
- 2008 NY Slip Op 51234(U) · 20 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Claimant's prima facie case on motions · Lack of medical necessity (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 Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))
| Alur Med. Supply, Inc. v Country-Wide Ins. Co. |
| 2008 NY Slip Op 51234(U) [20 Misc 3d 126(A)] |
| Decided on June 12, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2007-777 Q C. NO. 2007-777 Q C
against
Country-Wide Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered April 12, 2007, deemed from a judgment of the same court entered May 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 12, 2007 order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,124.
Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for, inter alia, summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.
On appeal, defendant argues that the affidavit by plaintiff’s employee, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied. [*2]
Turning to the merits of defendant’s cross motion for summary judgment, defendant based its denial of plaintiff’s claim upon an affirmed report of an independent medical examination (IME). The IME report did not address the necessity for medical supplies and, therefore, did not establish prima facie that the supplies provided by plaintiff were not medically necessary (cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 19 Misc 3d 130[A], 2008 NY Slip Op 50534[U] [App Term, 2d & 11th Jud Dists 2008]; Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50327[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant is not entitled to summary judgment upon its cross motion.
Pesce, P.J.,and Golia,J., concur
Steinhardt, J., concurs in a separate memorandum.
Steinhardt, J., concurs in the result in the following memorandum:
While I agree with the result reached by the majority, I do so for other reasons. I find that
defendant has come forward with triable issues of fact sufficient to defeat plaintiff’s motion for
summary judgment.
Decision Date: June 12, 2008
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the provider failed its prima facie case because its billing manager's affidavit did not show personal knowledge of the provider's practices sufficient to lay a business-records foundation for the annexed documents.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)
Held the insurer's affirmed IME report did not establish prima facie that the medical supplies were unnecessary because it did not address the need for supplies, so its cross motion was denied.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U)) Contrasted (cf., but see)The insurer's affirmed peer review established that the supplies were medically unnecessary, and the provider submitted no contrary evidence.
- Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U)) Contrasted (cf., but see)The insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity.
Similar decisions
- 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.
- Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
- 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.
- 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.
- Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))The provider's action was premature because it began before responses to timely verification requests were served.