October 30, 2013

Amherst Med. Supply, LLC v A. Cent. Ins. Co. (2013 NY Slip Op 51800(U))

Headnote

The court considered the denial of the defendant-insurer's motion for summary judgment in a case to recover assigned first-party no-fault benefits. The main issue decided was whether the peer review report and affidavit submitted by the defendant's chiropractor provided a sufficient basis to conclude that the medical supplies at issue were not medically necessary. The court held that the peer reviewer's assertion was insufficient to meet defendant's burden of eliminating all triable issues as to medical necessity. Additionally, the court found that the plaintiff's submission of an affidavit prepared by the assignor's treating chiropractor was sufficient to raise a triable issue as to medical necessity. Therefore, the order denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Amherst Med. Supply, LLC v A. Cent. Ins. Co. (2013 NY Slip Op 51800(U))

Amherst Med. Supply, LLC v A. Cent. Ins. Co. (2013 NY Slip Op 51800(U)) [*1]

Amherst Med. Supply, LLC v A. Cent. Ins. Co.

2013 NY Slip Op 51800(U) [41 Misc 3d 133(A)]

Decided on October 30, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570565/13.

Amherst Medical Supply, LLC, a/a/o Darlene Vinson-Sims, Plaintiff-Respondent,
against
A. Central Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered May 31, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered May 31, 2013, insofar as appealed from, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this action to recover assigned first-party no-fault benefits. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that “I do not find the need for . . . durable medical goods,” was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013