February 11, 2013

Favorite Health Prods., Inc. v GEICO Ins. Co. (2013 NY Slip Op 50201(U))

https://www.beynensonlaw.com/case-law/favorite-health-prods-inc-v-geico-ins-co-2013-ny-slip-op50201u/

Court: Appellate Term, Second Department
Decided: February 11, 2013
Citation: 2013 NY Slip Op 50201(U) · 38 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Favorite Health Prods., Inc. v GEICO Ins. Co., 38 Misc 3d 139(A), 2013 NY Slip Op 50201(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 parties' medical submissions raised a triable issue about the equipment's medical necessity, precluding summary judgment for either side. The insurer's claims examiner established timely mailing of medical necessity denials. Its doctors' affirmed peer reviews supplied a factual basis and medical rationale for finding the equipment unnecessary. The provider's opposing physician affirmation, however, sufficiently raised a factual issue on medical necessity. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's summary judgment motion, and denied that motion. The denial of the insurer's cross motion for summary judgment dismissing the complaint remained intact.

Reported in New York Official Reports at Favorite Health Prods., Inc. v GEICO Ins. Co. (2013 NY Slip Op 50201(U))

[*1]

Favorite Health Prods., Inc. v GEICO Ins. Co.

2013 NY Slip Op 50201(U) [38 Misc 3d 139(A)]

Decided on February 11, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-417 K C.

Favorite Health Products, Inc. as Assignee of YIUDELKY Y. BURDIER, Respondent, —
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 6, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 6, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,782.80.

ORDERED that the judgment is reversed, with $30 costs, so much of the January 6, 2011 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered January 6, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit by defendant’s claims examiner submitted in opposition to plaintiff’s motion [*2]and in support of defendant’s cross motion was sufficient to establish that defendant’s claim denial forms, which denied plaintiff’s claims on the ground that the medical equipment provided was not medically necessary, had been timely mailed (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]). In addition, the affirmed peer review reports by defendant’s doctors that were submitted, were sufficient to establish a lack of medical necessity for the medical equipment in question, as they provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the equipment (see Delta Diagnostic Radiology, P.C. v Integon Natl Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor which was sufficient to raise a triable issue of fact as to the equipment’s medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered January 6, 2011 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 2013

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)

Held the affirmed peer reviews established lack of medical necessity, but the provider's doctor's affirmation raised a triable issue, so neither party was entitled to summary judgment.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 95 (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 claims examiner's affidavit sufficiently established timely mailing of the medical-necessity denial forms, so the defense was preserved and, with the peer reviews, defeated the provider's summary judgment motion.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe 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) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
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.
Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U)) FollowedThe provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) Contrasted (cf., but see)The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.
Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U))The insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52367(U))The insurer established lack of medical necessity through an affirmed peer review report, and the provider submitted no medical rebuttal.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.