September 10, 2008
Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U))
https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-geico-ins-co-2008-ny-slip-op-51867u/
- Court
- Appellate Term, Second Department
- Decided
- September 10, 2008
- Citation
- 2008 NY Slip Op 51867(U) · 20 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Lack of medical necessity · Proving a fee schedule defense (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 GEICO Ins. Co. (2008 NY Slip Op 51867(U))
| Alur Med. Supply, Inc. v GEICO Ins. Co. |
| 2008 NY Slip Op 51867(U) [20 Misc 3d 145(A)] |
| Decided on September 10, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through September 22, 2008; it will not be published in the printed Official Reports.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., RIOS and STEINHARDT, JJ
2007-1590 Q C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 9, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.
Order, insofar as appealed from, modified by granting defendant’s cross motion for summary judgment to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals from so much of the order as denied its cross motion for summary judgment.
In support of its cross motion for summary judgment, defendant established that it paid $297.50 towards plaintiff’s $311 claim and that it timely denied the balance of said claim on the ground that the fee charged was excessive. Since defendant did not establish as a matter of law that the fee charged was excessive, defendant was not entitled to summary judgment dismissing the balance of said claim. With respect to the claims in the sums of $848 (second cause of action) and $628 (third cause of action), defendant’s affirmed peer review report established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, defendant’s cross motion for summary judgment should have been granted to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action (see 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. [*2]Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Plaintiff’s contention, that the peer review report was inadmissible since it contained a
stamped facsimile of the doctor’s signature, was raised for the first time on appeal and, thus,
plaintiff waived any objection thereto (Dowling v Mosey, 32 AD3d 1190 [2006]; cf. Support Billing & Mgt. Co. v Allstate Ins.
Co., 15 Misc 3d 126[A], 2007NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists
2007]; Vista Surgical Supplies, Inc. v
Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d &
11th Jud Dists 2006]). Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 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.
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 the affirmed peer review established lack of medical necessity for the supplies and was unrebutted; the facsimile-signature objection was waived as raised first on appeal.
Of the 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)
Held the insurer showed a timely denial of the claim balance as excessive but did not establish as a matter of law that the fee charged was excessive.
Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 84 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U)) Contrasted (cf., but see)The insurer's peer review reports were inadmissible because it did not show that the reviewing doctor placed the stamped signatures on them.
- Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U)) Contrasted (cf., but see)The insurer's peer reviews bearing stamped facsimile signatures were inadmissible under CPLR 2106 on the record presented.
Cited by
A label shows how the later decision treated this one.
- Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U)) FollowedThe insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature.
- Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))The insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.
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.
- All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51417(U))The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary.
- Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 50934(U))An insurer need not attach the medical records reviewed by its peer reviewer to its summary judgment motion.
- 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.