April 16, 2013

Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U))

Headnote

The court considered the appeal of a motion for summary judgment from the Civil Court of the City of New York, Bronx County, which sought to dismiss a complaint brought by Amherst Medical Supply, LLC. The complaint was filed against New York Central Mutual Fire Insurance Company, seeking recovery of assigned first-party no-fault benefits. The main issue decided was whether the peer review report and accompanying affidavit submitted by the defendant's chiropractor provided sufficient factual basis or medical rationale for his conclusion that the medical supplies in question were not medically necessary. The holding of the court was that the action was not ripe for summary dismissal, as the defendant's submission failed to meet its prima facie burden of eliminating all triable issues as to medical necessity. The court affirmed the order entered by the Civil Court and held that plaintiff's submission of an affidavit prepared by the assignor's treating chiropractor was sufficient to raise a triable issue as to medical necessity.

Reported in New York Official Reports at Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U))

Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U)) [*1]

Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50586(U) [39 Misc 3d 135(A)]

Decided on April 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
571112/12.

Amherst Medical Supply, LLC a/a/o Chanel Groom, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 19, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 19, 2012, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. 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 plaintiff’s assignor’s (voluminous) medical file lacked “useful/supportive information” — without essaying to explain what medical records, if any, were missing from the file — 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: April 16, 2013