June 6, 2016

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U))

https://www.beynensonlaw.com/case-law/infinite-ortho-prods-inc-v-new-york-cent-mut-fire-ins-co-2016-ny-slipop-50918u/

Court: Appellate Term, Second Department
Decided: June 6, 2016
Citation: 2016 NY Slip Op 50918(U) · 52 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 52 Misc 3d 128(A), 2016 NY Slip Op 50918(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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's doctor's affidavit failed to rebut the insurer's peer review showing that the supplies lacked medical necessity. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault complaint based on the assignor's IME nonappearance. The affirmed peer review supplied a factual basis and medical rationale for finding the supplies unnecessary, while the opposing affidavit did not meaningfully address its conclusions. The provider did not challenge the finding that the denial was timely mailed. The Appellate Term, Second Department, affirmed dismissal on medical necessity grounds and expressly declined to reach the provider's challenges to proof of IME nonappearance.

Reported in New York Official Reports at Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U))

[*1]

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 50918(U) [52 Misc 3d 128(A)]

Decided on June 6, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2080 Q C

Infinite Ortho Products, Inc., also Known as INFINATE ORTHO PRODUCTS, INC., as Assignee of MATTHEW JEWEL, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely denied plaintiff’s claim on the ground of lack of medical necessity for the supplies furnished by plaintiff and that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court granted defendant’s motion based on the failure of plaintiff’s assignor to appear for the IMEs.

In support of its motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As a result, since plaintiff does not challenge the Civil Court’s determination that defendant’s denial of claim form had been timely mailed, defendant was entitled to summary judgment dismissing the complaint on the ground of lack of medical necessity. In light of the foregoing, we need not reach plaintiff’s contentions with respect to defendant’s proof that plaintiff’s assignor failed to appear for the IMEs.

Accordingly, the order is affirmed.

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

Decision Date: June 06, 2016

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.

Lack of medical necessity

Open the full map

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

Affirmed summary judgment for the insurer because its affirmed peer review gave a factual basis and medical rationale, and the provider's doctor's affidavit failed to meaningfully refer to or rebut its conclusions.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

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

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51497(U))The insurer established timely mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, the Civil Court denied the insurer's cross motion for summary judgment, leaving the IME nonappearance defense for trial.
Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))The provider failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue.
Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2009 NY Slip Op 50731(U))The provider failed to rebut the insurer's IME proof that the supplied items were not medically necessary.