December 19, 2011

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52290(U))

Headnote

The main issues in this case were whether the supplies provided to the plaintiff's assignor were medically necessary and whether the defendant was entitled to summary judgment. Jesa Medical Supply, Inc. as the assignee of Wilfred Jones, sought to recover first-party no-fault benefits from Progressive Insurance Co. The Civil Court found that the plaintiff had established its prima facie case, but also found that the sole issue for trial was the medical necessity of the supplies. The appellate court held that the defendant's cross motion for summary judgment dismissing the complaint should be granted, as the supplies were deemed not medically necessary by the defendant's peer review report and the plaintiff did not rebut this showing. In summary, the relevant facts considered by the court were the medical necessity of the supplies provided to the plaintiff's assignor, the timely denial of claims by the defendant, and the standards required to establish a prima facie case for recovery of first-party no-fault benefits. The main issues decided by the court were whether the supplies at issue were medically necessary and whether the defendant was entitled to summary judgment. The holding of the court was that the defendant's cross motion for summary judgment dismissing the complaint was granted, as the defendant's showing that the supplies were not medically necessary was unrebutted by the plaintiff.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52290(U))

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52290(U)) [*1]

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

2011 NY Slip Op 52290(U) [34 Misc 3d 128(A)]

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
.

Jesa Medical Supply, Inc. as Assignee of WILFRED JONES, Respondent,
against
Progressive Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. 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. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, 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. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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. KhodadadiRadiology, 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., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: December 19, 2011