March 31, 2010

Laperla Supply, Inc. v Progressive Northwestern Ins. Co. (2010 NY Slip Op 50586(U))

https://www.beynensonlaw.com/case-law/laperla-supply-inc-v-progressive-northwestern-ins-co-2010-ny-slip-op50586u/

Court: Appellate Term, Second Department
Decided: March 31, 2010
Citation: 2010 NY Slip Op 50586(U) · 27 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Laperla Supply, Inc. v Progressive Northwestern Ins. Co., 27 Misc 3d 128(A), 2010 NY Slip Op 50586(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 insurer's unrebutted affirmed peer review report established that the supplies were medically unnecessary and warranted dismissal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. The insurer established timely mailing of its denial and supplied a peer review report setting out a factual basis and medical rationale for its conclusion. The provider failed to rebut that showing. Although the appeal also challenged the Civil Court's determination that the provider's prima facie case was established for all purposes under CPLR 3212 (g), the appellate court passed on no other issue.

Reported in New York Official Reports at Laperla Supply, Inc. v Progressive Northwestern Ins. Co. (2010 NY Slip Op 50586(U))

[*1]

Laperla Supply, Inc. v Progressive Northwestern Ins. Co.

2010 NY Slip Op 50586(U) [27 Misc 3d 128(A)]

Decided on March 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-185 K C.

Laperla Supply, Inc. a/a/o LOREEN RIGBY-KING, Respondent,
against
Progressive Northwestern Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 6, 2008. The order, insofar as appealed from, implicitly denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint and deemed established as a fact for all purposes in the action that plaintiff had made out a prima facie case.

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 in the principal sum of $910 and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for limitation of issues of fact for trial (see CPLR 3212 [g]). Defendant appeals from so much of the Civil Court’s order as denied its cross motion for summary judgment dismissing the complaint and as deemed established plaintiff’s prima facie case.

In support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground that the supplies provided were medically unnecessary (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 addition, annexed to the cross motion papers was an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that the supplies provided to plaintiff’s assignor were not medically [*2]necessary (see Med Tech Prods., Inc. v Geico Ins. Co., 25 Misc 3d 129[A], 2009 NY Slip Op 52111[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d 5 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut said showing, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d at 7; 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]). We pass on no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 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.

Lack of medical necessity

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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 affirmed peer review set forth a factual basis and medical rationale that the provider failed to rebut, so the insurer's cross motion was granted.

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

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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 insurer sufficiently established timely mailing of the medical-necessity denial.

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.

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.
Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors.
Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014) FollowedAn omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Iav Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 52155(U))The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion.
Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.
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.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.
Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52355(U))The insurer's unrebutted peer review report established lack of medical necessity for the supplies at issue.