December 10, 2010

Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))

https://www.beynensonlaw.com/case-law/iav-med-supply-inc-v-progressive-ins-co-2010-ny-slip-op-52155u/

Court: Appellate Term, Second Department
Decided: December 10, 2010
Citation: 2010 NY Slip Op 52155(U) · 29 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Iav Med. Supply, Inc. v Progressive Ins. Co., 29 Misc 3d 141(A), 2010 NY Slip Op 52155(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's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the assigned no-fault complaint. An affidavit describing standard office practices established timely mailing of the denial, and the affirmed peer review supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider's failure to oppose left no triable issue of medical necessity, although Civil Court had designated that issue for trial.

Reported in New York Official Reports at Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))

[*1]

Iav Med. Supply, Inc. v Progressive Ins. Co.

2010 NY Slip Op 52155(U) [29 Misc 3d 141(A)]

Decided on December 10, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-515 RI C.

IAV Medical Supply, Inc. as Assignee of JULIA CALDAS, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered January 15, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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. Plaintiff did not oppose the cross motion. The Civil Court, in effect, denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of defendant’s cross motion for summary judgment, defendant submitted an affidavit of its personal injury protection litigation representative, which established that the denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Also submitted was an affirmed peer review report, which set forth a factual basis and medical rationale for defendant’s doctor’s opinion that there was a lack of medical necessity for the [*2]medical supplies at issue. Since plaintiff did not oppose the cross motion, it failed to raise a triable issue of fact as to whether the supplies at issue were medically necessary. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (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]; 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]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 peer review set forth a factual basis and medical rationale for lack of medical necessity of the supplies, and the provider, not opposing, raised no triable issue.

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 litigation representative's affidavit established timely mailing of the denial form in accordance with the insurer's standard office practices and procedures.

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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The 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))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52290(U))The insurer's unrebutted peer review report established that the supplies lacked medical necessity.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U))The provider's counsel's affirmation did not rebut the insurer's supported peer review finding the medical supplies unnecessary.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.