February 19, 2013

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50247(U))

https://www.beynensonlaw.com/case-law/jamaica-med-supply-inc-v-geico-gen-ins-co-2013-ny-slip-op50247u/

Court: Appellate Term, Second Department
Decided: February 19, 2013
Citation: 2013 NY Slip Op 50247(U) · 38 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co., 38 Misc 3d 141(A), 2013 NY Slip Op 50247(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 peer reviewers' facsimile signatures were placed by the doctors or at their direction, defeating the provider's admissibility objection. The insurer established timely mailing of denials based on lack of medical necessity. Its peer review reports and physician affirmations supplied a factual basis and medical rationale for finding the disputed supplies unnecessary, and the provider did not rebut that showing. The provider argued that electronic stamped signatures rendered the affirmations inadmissible, but the record established their placement by the physicians or at their direction. The Appellate Term, Second Department, affirmed the judgment entered after denial of the provider's motion and grant of the insurer's cross motion for summary judgment dismissing the complaint; the provider's remaining appellate contentions lacked merit.

Reported in New York Official Reports at Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50247(U))

[*1]

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50247(U) [38 Misc 3d 141(A)]

Decided on February 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-70 K C.

Jamaica Medical Supply, Inc. as Assignee of DAVID W. MONK and DYSHAUN REID, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 28, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted 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]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v [*2]Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted peer review reports, as well as affirmations executed by the physicians who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. Defendant’s prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the affirmations executed by the peer review physicians contained electronic stamped facsimiles of the peer reviewers’ signatures and, as a result, defendant failed to provide proof in admissible form to establish its defense of lack of medical necessity. However, the record indicates that the signatures were placed on the affirmations by the doctors who had performed the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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

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

Held the peer reviewers' affirmations set forth a factual basis and medical rationale, their stamped signatures were placed by or at the doctors' direction and so admissible, and the provider offered no rebuttal.

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

Open the full map

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)

Rejected the provider's appellate argument and held the insurer's affidavit established timely mailing of the denial of claim forms.

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

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.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U)) FollowedThe insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U)) FollowedThe peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.

Similar decisions

Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 51765(U))The provider's challenge to facsimile signatures failed because the peer reviewers placed the signatures on their reports or directed their placement.
Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report.
Jamaica Dedicated Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50752(U))The insurer's affidavit omitted claims in the complaint and failed to substantiate its fee-schedule defense, defeating summary judgment.
Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50868(U))The provider's medical affidavit failed to rebut the insurer's peer review showing that the disputed supply lacked medical necessity.
Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))The insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.