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October 30, 2013

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

https://www.beynensonlaw.com/case-law/amherst-med-supply-llc-v-a-cent-ins-co-2013-ny-slip-op51800u/

Court
Appellate Term, First Department
Decided
October 30, 2013
Citation
2013 NY Slip Op 51800(U) · 41 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Medical necessity
Legal questions
Lack of medical necessity (see the maps)
Cite as
Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133(A), 2013 NY Slip Op 51800(U) (App Term, 1st Dept 2013)

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 peer review lacked a factual basis or medical rationale for finding the medical supplies unnecessary. Its chiropractor submitted a report and affidavit containing only a conclusory assertion that durable medical goods were not needed. That assertion failed to eliminate triable issues of medical necessity and did not satisfy the insurer's prima facie burden on summary judgment. Independently, the treating chiropractor's affidavit specified the assignor's conditions and described the intended benefits of each prescribed supply, raising a triable issue. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the challenged portion of the insurer's motion to dismiss the assigned no-fault claims on summary judgment.

Reported in New York Official Reports at 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This opinion is uncorrected and will not be published in the printed Official Reports.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

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Affirmed denial of the insurer's motion because the peer reviewer's bald assertion that supplies were unneeded lacked a factual basis and medical rationale; the treating chiropractor's affidavit would in any event raise a triable issue.

  • Appellate DivisionApp Div 1
  • Appellate TermApp Term 61
  • Trial courtsTrial 11
2008, Appellate Division: 1 decision (1 Insurer raised triable issue)2020, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2018, Appellate Term: 2 decisions (2 Unrebutted, insurer prevails)2017, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2016, Appellate Term: 7 decisions (3 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 6 decisions (5 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2014, Appellate Term: 7 decisions (2 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2013, Appellate Term: 11 decisions (4 Unrebutted, insurer prevails, 4 Provider's rebuttal sufficient, 2 Insurer's proof insufficient, 1 Trial error, new trial)2012, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2011, Appellate Term: 2 decisions (1 Unrebutted, insurer prevails, 1 Insurer's proof insufficient)2010, Appellate Term: 2 decisions (1 Unrebutted, insurer prevails, 1 Insurer's proof insufficient)2009, Appellate Term: 4 decisions (1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2008, Appellate Term: 3 decisions (3 Insurer's proof insufficient)2007, Appellate Term: 6 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2006, Appellate Term: 3 decisions (1 Insurer raised triable issue, 1 Insurer's proof insufficient, 1 Trial error, new trial)2004, Appellate Term: 1 decision (1 Insurer raised triable issue)2024, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2020, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2019, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2011, Trial courts: 1 decision (1 Insurer's proof insufficient)2007, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2006, Trial courts: 2 decisions (1 Insurer raised triable issue, 1 Insurer's proof insufficient)2005, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2004, Trial courts: 1 decision (1 Insurer's proof insufficient)This decision
2005201020152020
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 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited by

A label shows how the later decision treated this one.

  • Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C. (2016 NY Slip Op 06680) FollowedThe insurer's affirmed peer review supported a default judgment despite lacking an original signature.
  • Five Boro Med. Equip., Inc. v A. Cent. Ins. Co. (2016 NY Slip Op 50412(U)) FollowedThe insurer's incomplete peer review failed to support two denials, and the provider's medical affidavit raised factual issues on two other claims.
  • Allstate Ins. Co. v Buffalo Neurosurgery Group (2019 NY Slip Op 03749)The insurer established a fee-schedule defense but failed to show that the assignor's spinal fusion surgery was medically unnecessary.

Similar decisions

  • Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U))The insurer's peer review lacked a factual basis or medical rationale for finding the prescribed supplies unnecessary.
  • Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co. (2014 NY Slip Op 51886(U))The insurer's peer review established lack of medical necessity, and the provider's attorney affirmation raised no triable issue.
  • Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U))The insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
  • Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
  • All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here.
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