December 17, 2014

EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-praetorian-ins-co-2014-ny-slip-op51806u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51806(U) · 46 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

EMC Health Prods., Inc. v Praetorian Ins. Co., 46 Misc 3d 129(A), 2014 NY Slip Op 51806(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 summary judgment cross motion was denied on appeal because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, modified the order accordingly and affirmed denial of the provider's motion. Although the insurer established timely medical necessity denials, the court's review of the record disclosed a factual issue concerning the supplies at issue.

Reported in New York Official Reports at EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))

[*1]

EMC Health Prods., Inc. v Praetorian Ins. Co.

2014 NY Slip Op 51806(U) [46 Misc 3d 129(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1049 K C

EMC Health Products, INC. as Assignee of RONALD LOUIS, Appellant,
against
Praetorian Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the supplies at issue were not medically necessary.

Defendant’s papers established that it had timely denied the claims at issue (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]) based on a lack of medical necessity. However, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014

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)

Found a triable issue of fact on medical necessity of the supplies, so the insurer's cross motion for summary judgment should 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 established timely denial of the claims, citing the standard-office-practice mailing rule.

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Similar decisions

High Quality Med. Supplies, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 50775(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))A provider's prima facie case does not require proof that supplies were actually delivered to the assignor or identification of who delivered them.
Market St. Surgical Ctr. v Praetorian Ins. Co. (2014 NY Slip Op 51804(U))The insurer's summary judgment motion was denied, and the provider's CPLR 3212 (g) findings were preserved on appeal.
EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.