March 8, 2010
Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-mercury-ins-co-2010-ny-slip-op-50385u/
- Decided
- March 8, 2010
- Citation
- 2010 NY Slip Op 50385(U) · 26 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- Medical necessity
- Legal questions
- Lack of medical necessity · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U))
| Infinity Health Prods., Ltd. v Mercury Ins. Co. |
| 2010 NY Slip Op 50385(U) [26 Misc 3d 142(A)] |
| Decided on March 8, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-895 K C.
against
Mercury Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 7, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
The affidavit of defendant’s claims representative sufficiently established the timely mailing of the claim denial form (see 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]). In support of its cross motion, defendant also submitted the affidavit and peer review report of its chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the medical equipment for which plaintiff sought payment in its second cause of action. As a result, defendant made a prima facie showing of its entitlement to summary judgment dismissing plaintiff’s second cause of action (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]), and the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.
As the doctor’s affirmation submitted by plaintiff in opposition to the cross motion was [*2]sufficient to raise a triable issue of fact as to medical necessity, the Civil Court properly denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action. Accordingly, the order, insofar as appealed from, is affirmed.
Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 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.
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 chiropractor's peer review made a prima facie showing of no medical necessity, but the provider's doctor's affirmation raised a triable issue, so the insurer's cross motion was properly denied.
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.
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 representative's affidavit sufficiently established timely mailing of the denial, though the motion failed on the medical-necessity rebuttal.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
- 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.
- Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U))The insurer's timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U))The insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
Similar decisions
- High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 50447(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity.
- Infinity Health Prods., Ltd. v Country-Wide Ins. Co. (2009 NY Slip Op 50239(U))The provider's supporting affidavit failed to establish a business-record foundation for the documents submitted on its summary judgment motion.
- Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51870(U))The provider's business-record foundation and the insurer's proof of timely mailing were insufficient to support their summary judgment motions.
- Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.