May 6, 2013

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50759(U))

https://www.beynensonlaw.com/case-law/b-y-surgical-supplies-inc-v-geico-gen-ins-co-2013-ny-slip-op50759u/

Court: Appellate Term, Second Department
Decided: May 6, 2013
Citation: 2013 NY Slip Op 50759(U) · 39 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op 50759(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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.

Both parties' summary judgment requests were denied because factual issues remained concerning the medical necessity of the supplies. The insurer established timely mailing of denials of two claims, but the decision stated only that the record presented triable medical-necessity issues. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed, leaving the insurer's cross motion denied.

Reported in New York Official Reports at B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50759(U))

[*1]

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50759(U) [39 Misc 3d 141(A)]

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1574 K C.

B & Y Surgical Supplies, Inc. as Assignee of ROSA PEREZ, Respondent, —
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) denials of the two claims at issue, which denied the claims on the ground of lack of medical necessity. However, on the record before us, we find that there are triable issues of fact as to the medical necessity of the supplies provided. [*2]Therefore, while the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint, plaintiff’s motion for summary judgment should also have been denied.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013

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.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held triable issues of fact existed as to the medical necessity of the supplies, so the insurer's cross motion was properly denied and the provider's motion should also have been denied.

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 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's papers sufficiently established timely mailing of the denials, which defeated the provider's motion together with the medical-necessity issue.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Similar decisions

B & Y Surgical Supplies, Inc. v American Tr. Ins. Co. (2014 NY Slip Op 51255(U))The insurer's unrebutted peer review established that the supplies lacked medical necessity and warranted summary judgment.
Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50764(U))The insurer's unrebutted peer review established that the disputed supply was not medically necessary and warranted dismissal.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.