February 26, 2008

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2008-ny-slip-op50347u/

Court: Appellate Term, Second Department
Decided: February 26, 2008
Citation: 2008 NY Slip Op 50347(U) · 18 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 later decision (see Cited by)
Issues: Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139(A), 2008 NY Slip Op 50347(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity. The insurer demonstrated timely mailing of its denials through evidence of its standard office mailing procedure, and submitted an affirmed peer review report and its reviewing chiropractor's affidavit. The provider failed to rebut the medical-necessity showing. Its own summary judgment motion also failed because its corporate officer did not establish personal knowledge of its practices and procedures sufficient to authenticate the attached documents as business records. The Appellate Term, Second Department, reversed the order, denied the provider's motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))

[*1]

Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 50347(U) [18 Misc 3d 139(A)]

Decided on February 26, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-1908 K C

Bath Medical Supply, Inc. a/a/o Stephanie Andre, Respondent,
against
New York Central Mutual Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 4, 2006. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to make a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Defendant’s cross motion for summary judgment should have been granted. Defendant demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed [*2](Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]), and defendant’s affirmed peer review report and the affidavit of its peer review chiropractor established prima facie that there was no medical necessity for the equipment provided by plaintiff. Since plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]).

Pesce, P.J., and Rios, J., concur.
Decision Date: February 26, 2008

Legal questions (3)

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held the provider's officer affidavit did not show personal knowledge of the provider's practices sufficient to lay a business-records foundation for the annexed documents, so no prima facie case was made.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.

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 proof established lack of medical necessity and the provider failed to rebut it

Held the insurer's affirmed peer review and its chiropractor's affidavit established prima facie that the supplies were not medically necessary, and the provider failed to rebut it, so the complaint was dismissed.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Proof of mailing

Open the full map

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 showed timely mailing of its denials through a standard office practice designed to ensure items are properly addressed and mailed.

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.

Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U)) FollowedThe insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
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.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.

Cited by

A label shows how the later decision treated this one.

Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U)) Contrasted (cf., but see)The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.
Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2009 NY Slip Op 50731(U))The provider failed to rebut the insurer's IME proof that the supplied items were not medically necessary.

Similar decisions

Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.
Bath Med. Supply, Inc. v Country Wide Ins. Co. (2009 NY Slip Op 51145(U))The insurer established verification tolling and timely denials, and its peer review raised a factual issue concerning medical necessity.
Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U))The insurer's timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity.
Bath Med. Supply, Inc. v Allstate Ins. Co. (2007 NY Slip Op 51602(U))The provider failed to establish its prima facie case because its officer's affidavit did not support admission of the attached business records.
Midwood Med. Equip. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50670(U))The provider's officer affidavit did not establish a business-records foundation, defeating its prima facie entitlement to summary judgment.