July 10, 2008

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51538(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-progressive-cas-ins-co-2008-ny-slip-op51538u/

Court: Appellate Term, Second Department
Decided: July 10, 2008
Citation: 2008 NY Slip Op 51538(U) · 20 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 20 Misc 3d 137(A), 2008 NY Slip Op 51538(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 IME report established lack of medical necessity for one supply claim, but its peer review did not establish that defense for another. Civil Court denied both parties' summary judgment motions, and the insurer appealed the denial of its cross motion. The insurer proved timely mailing of its denials through its standard office practice. Its affirmed IME report showed that the supplies covered by that denial were medically unnecessary, and the provider offered no rebuttal evidence. The affirmed peer review failed to establish medical nonnecessity for the separate claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the IME-based claim and otherwise affirmed.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51538(U))

[*1]

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co.

2008 NY Slip Op 51538(U) [20 Misc 3d 137(A)]

Decided on July 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-763 K C.

Eagle Surgical Supply, Inc., a/a/o JOEY EDWARDS, Respondent,
against
Progressive Casualty Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 26, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, modified by providing that defendant’s cross motion for summary judgment is granted to the extent of dismissing the complaint insofar as it sought to recover upon plaintiff’s claim seeking the sum of $925.75; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary
judgment dismissing the complaint on the ground of lack of medical necessity. The court denied both plaintiff’s motion and defendant’s cross motion, holding that the affidavits in support of the motion and cross motion were insufficient to establish either party’s entitlement to summary judgment. Defendant appeals from the order insofar as it denied its cross motion.

Defendant established that it timely mailed the denial of claim forms at issue, which denied plaintiff’s claims based upon either a peer review or an independent medical examination, pursuant to its standard office practice or 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]). Since the affirmed independent medical examination report submitted [*2]by defendant in support of its cross motion established prima facie that the supplies provided by plaintiff for which plaintiff sought to recover the sum of $925.75 were not medically necessary and plaintiff did not present any evidence refuting defendant’s prima facie showing, the court should have granted defendant’s cross motion for summary judgment dismissing the complaint insofar as it sought to recover upon said claim (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]). Inasmuch as the affirmed peer review report annexed to defendant’s cross motion did not establish that the supplies for which plaintiff sought to recover on the claim seeking the sum of $235.63 were medically unnecessary, defendant was not entitled to summary judgment dismissing said claim.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the affirmed IME report established prima facie that the supplies on one claim were not medically necessary and, unrefuted by the provider, warranted dismissal, while the peer review on another claim failed to establish lack of necessity.

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.

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 established timely mailing of its denials pursuant to 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.

Similar decisions

Eagle Surgical Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50854(U))A peer review report is inadmissible at trial to prove lack of medical necessity, which must be resolved through medical expert testimony.
Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))The insurer failed to establish timely mailing of its denial and that its medical necessity defense was not precluded.
Eagle Surgical Supply, Inc v Mercury Cas. Co. (2012 NY Slip Op 51286(U))The insurer's peer review report lacked a factual basis and medical rationale because it merely asserted insufficient documentation.
Mega Supplies Billing, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51418(U))The insurer's denial was not fatally defective, and its unrebutted affirmed peer review established lack of medical necessity for the supplies.
Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))The insurer's unrebutted peer review report established lack of medical necessity for the supplies at issue.