January 9, 2009

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014)

https://www.beynensonlaw.com/case-law/complete-orthopedic-supplies-inc-v-state-farm-mut-auto-ins-co-2009-ny-slip-op-29014/

Court: Appellate Term, Second Department
Decided: January 9, 2009
Citation: 2009 NY Slip Op 29014 · 23 Misc 3d 5
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 5 (App Term, 2d Dept 2009)

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.

An omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. Under CPLR 2001, the omitted years in two jurats did not defeat the mailing proof, particularly because the provider had not objected. The affidavits established timely mailing of medical-necessity denials through standard office procedures. The insurer's affirmed peer review report established lack of medical necessity for the supplies, and that proof was unrebutted. The provider's remaining contentions lacked merit or were raised for the first time on appeal. The provider's prima facie showing was not reviewed.

Reported in New York Official Reports at Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014)

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co.

2009 NY Slip Op 29014 [23 Misc 3d 5]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 22, 2009

[*1]

Complete Orthopedic Supplies, Inc., as Assignee of Ana Valencia, Respondent,
v
State Farm Mutual Automobile Insurance Company, Appellant.

Supreme Court, Appellate Term, Second Department, January 9, 2009

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant. Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for respondent.

{**23 Misc 3d at 6} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order dated June 28, 2007 vacated, 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, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of{**23 Misc 3d at 7} medical necessity. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Since defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the Civil Court’s implicit determination with respect thereto.

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto (see CPLR 2001; Matter of Goffredo v City of New York, 33 AD3d 346 [2006]; Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645 [1999]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700 [1983]). Accordingly, the affidavits submitted by defendant were sufficient to establish that its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

The papers submitted by defendant in support of its cross motion, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which proof was unrebutted. As a result, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the judgment is reversed, the order dated June 28, 2007 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Rios, JJ., concur.

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.

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

Held the mailing affidavits established timely mailing under a standard office practice, disregarding the jurat's missing year as a nonprejudicial technical defect to which the provider never objected.

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.

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 affirmed peer review established prima facie that the supplies were not medically necessary, and the proof was unrebutted, so the insurer's cross motion was granted.

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, 315 (this one included) are in the same category.

Cited in this decision

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

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.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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.

Cited by

A label shows how the later decision treated this one.

Laperla Supply, Inc. v Progressive Northwestern Ins. Co. (2010 NY Slip Op 50586(U)) FollowedThe insurer's unrebutted affirmed peer review report established that the supplies were medically unnecessary and warranted dismissal.
Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 27189)The insurer's one-day delay in sending a follow-up EUO request did not excuse the provider's four nonappearances on this record.

Similar decisions

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))The provider failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue.
Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.
Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.