July 7, 2010

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-unitrin-advantage-ins-co-2010-ny-slip-op51183u/

Court: Appellate Term, Second Department
Decided: July 7, 2010
Citation: 2010 NY Slip Op 51183(U) · 28 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co., 28 Misc 3d 127(A), 2010 NY Slip Op 51183(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 failed to establish timely mailing of its denial and that its medical necessity defense was not precluded. The insurer sought summary judgment dismissing the provider's claim for equipment on the ground that it was not medically necessary. An employee of another insurance company supplied an affidavit, but it did not describe the defendant insurer's standard office practices and procedures for ensuring proper addressing and mailing. That omission left the insurer without proof of timely denial. The Appellate Term, Second Department, reversed the order granting summary judgment and denied the insurer's motion; it did not reach the provider's other contentions.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))

[*1]

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co.

2010 NY Slip Op 51183(U) [28 Misc 3d 127(A)]

Decided on July 7, 2010

Appellate Term, Second Department

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

As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-629 K C.

Eagle Surgical Supply, Inc. as Assignee of Stephen Brown, Appellant,
against
Unitrin Advantage Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 22, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court granted defendant’s motion, and the instant appeal ensued.

The affidavit of an employee of Kemper Independence Insurance Company, submitted by defendant, failed to provide allegations concerning defendant’s standard
office practices and procedures designed to ensure that items are properly addressed and mailed so as to establish that defendant had timely mailed its denial of claim form (see Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting defendant’s motion for summary judgment is reversed and defendant’s motion is denied.

In light of our determination, we do not reach plaintiff’s other contentions.

Steinhardt, J.P., Pesce and Rios, JJ., concur. [*2]
Decision Date: July 07, 2010

Legal questions

A question 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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the affidavit of a Kemper Independence Insurance Company employee did not describe standard office practices ensuring proper addressing and mailing, so timely mailing of the denial, and thus non-preclusion of the medical-necessity defense, was not shown.

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

Cited in this decision

Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50230(U))The insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51862(U))The insurer failed to prove timely verification requests, and the provider failed to lay a business-records foundation.
Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. (2007 NY Slip Op 27088)The insurer failed to prove timely mailing of its denials and was precluded from asserting lack of medical necessity on three claims.

Similar decisions

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))The insurer's affirmed peer review established that the supplies were medically unnecessary, and the provider submitted no contrary evidence.
Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
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.
Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50950(U))The insurer's affidavits and documents established timely mailing of its denial, and the provider waived its objection under CPLR 2309 (c).
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.