November 6, 2020

First Care Med. Equip., LLC v Kemper Ins. Co. (2020 NY Slip Op 51326(U))

https://www.beynensonlaw.com/case-law/first-care-med-equip-llc-v-kemper-ins-co-2020-ny-slip-op51326u/

Court: Appellate Term, Second Department
Decided: November 6, 2020
Citation: 2020 NY Slip Op 51326(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case Medical necessity
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

First Care Med. Equip., LLC v Kemper Ins. Co., 2020 NY Slip Op 51326(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 provider failed to establish prima facie entitlement to summary judgment, and the insurer raised a triable issue of medical necessity. The provider did not show either an untimely denial or a timely denial that was conclusory, vague, or meritless as a matter of law. The insurer also raised a factual dispute over whether the supplies allegedly furnished were medically necessary. Under 11 NYCRR 65-3.8 (h), a nonsubstantive technical defect concerning the date requested verification was received did not invalidate the denial. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, vacated summary judgment for the provider on the first cause of action, and denied that branch of its motion.

Reported in New York Official Reports at First Care Med. Equip., LLC v Kemper Ins. Co. (2020 NY Slip Op 51326(U))

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

First Care Medical Equipment, LLC, as Assignee of Perez, Vanessa, Respondent,
against
Kemper Insurance Company, Appellant.

Goldber, Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered April 23, 2018. The judgment, insofar as appealed from as limited by the brief, entered pursuant to so much of an order of that court entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, awarded plaintiff the principal sum of $2,523.37 upon the first cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of a judgment of the Civil Court entered April 23, 2018 as awarded plaintiff the principal sum of $2,523.37 upon the first cause of action, entered pursuant to so much of an order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon that cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the first cause of action, since plaintiff did not establish either that defendant failed to timely deny the claim at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip [*2]Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In any event, in opposition to the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, defendant established the existence of a triable issue of fact as to whether the supplies allegedly furnished by plaintiff were medically necessary. We note that the non-substantive technical defect on the denial of claim form regarding the date the requested verification was received did not affect the validity of the denial of claim form (see 11 NYCRR 65-3.8 [h]). Therefore, the branch of plaintiff’s motion seeking summary judgment upon the first cause of action should have been denied.

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff’s motion is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed its prima facie burden because it did not show the claim was not timely denied or that the timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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 was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)

Held, as an alternative ground, that the insurer's opposition raised a triable issue as to whether the supplies were medically necessary, so the provider's motion should have been denied.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Active Care Med. Supply Corp. v Farmington Cas. Co. (2019 NY Slip Op 50987(U))The provider's second and third causes of action were premature because requested wholesale invoices remained outstanding.
Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))The provider failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter.
Active Care Med. Supply Corp. v Tri State Consumers Ins. Co. (2017 NY Slip Op 51721(U))The provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied.
Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))The insurer established lack of medical necessity through an affirmed peer review report that the provider did not rebut with medical evidence.