December 21, 2011

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))

Headnote

In this case, the court considered a dispute between Jesa Medical Supply, Inc. and Progressive Insurance Co. over first-party no-fault benefits. Jesa Medical Supply, Inc. had provided medical supplies to an individual, Shirline Wilkinson, and sought to recover assigned benefits from Progressive Insurance Co. In response, Progressive Insurance Co. denied the claims, arguing that the supplies were not medically necessary. The main issue decided by the court was whether the supplies provided by Jesa Medical Supply, Inc. were medically necessary. The court ultimately held in favor of Progressive Insurance Co., granting their cross motion for summary judgment and dismissing the complaint, as they had demonstrated that there was a lack of medical necessity for the supplies. The court's decision was based on the fact that the medical supplies were determined to be not medically necessary by an affirmed peer review report submitted by Progressive Insurance Co. This decision was reached on December 21, 2011.

Reported in New York Official Reports at Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))

Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U)) [*1]

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

2011 NY Slip Op 52355(U) [34 Misc 3d 132(A)]

Decided on December 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 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
2010-617 K C.

Jesa Medical Supply, Inc. as Assignee of Shirline Wilkinson, 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 2, 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 medical supplies at issue. Defendant’s showing [*2]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. 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]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 21, 2011