May 14, 2021

Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-mvaic-2021-ny-slip-op-50440u/

Court: Appellate Term, Second Department
Decided: May 14, 2021
Citation: 2021 NY Slip Op 50440(U) · 71 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Longevity Med. Supply, Inc. v MVAIC, 71 Misc 3d 137(A), 2021 NY Slip Op 50440(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 provider's mailing affidavit raised a factual issue as to timely submission of the claims in its second through fifth causes of action. MVAIC established timely denials asserting submission beyond the 45-day limit under 11 NYCRR 65-2.4 (c), but the provider's affidavit created a presumption of timely mailing. The Appellate Term, Second Department, modified the order to deny dismissal of those causes of action. Dismissal of the first cause of action remained affirmed because MVAIC need not attach the medical records reviewed by its peer reviewer. Dismissal of the sixth remained affirmed because the provider's affidavit did not raise a triable issue. The denial of the provider's summary judgment cross motion also remained affirmed.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

[*1]

Longevity Med. Supply, Inc. v MVAIC

2021 NY Slip Op 50440(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-451 K C

Longevity Medical Supply, Inc., as Assignee of Alexis, Evens, Appellant,

against

MVAIC, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 5, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action, the affidavit of defendant’s claims representative established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms denying the claims set forth within those causes of action on the ground that they had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for plaintiff’s failure to give timely notice was provided (see id.). As defendant established its prima facie entitlement to judgment as a matter of law upon those causes of action (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that those claim forms had been timely mailed to defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff timely submitted the claims which are the subject of the second through fifth causes of action.

With respect to the first cause of action, contrary to plaintiff’s sole argument to defeat that branch of defendant’s motion, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50149[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As to the sixth cause of action, plaintiff’s contention that the affidavit it submitted was sufficient to raise a triable issue of fact lacks merit.

Accordingly, the order is modified by denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021

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.

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer proved timely mailing of its 45-day-rule denials, but the provider's affidavit gave rise to a presumption that its claim forms were timely mailed, leaving a triable issue whether the claims were timely submitted.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 92 (this one included) are in the same category.

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 (rules on the question, but another ground decided the case)

Rejected the provider's sole argument that the insurer had to annex the medical records reviewed by its peer reviewer, leaving dismissal of the first cause of action intact.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (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.
Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U)) FollowedThe insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U)) FollowedThe provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U)) FollowedAn insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.

Cited by

A label shows how the later decision treated this one.

Absolute Med. Supplies, Inc. v Unitrin Advantage Ins. Co. (2023 NY Slip Op 51237(U)) FollowedThe insurer's summary judgment motion based on claim submission more than 45 days after service was denied on appeal.

Similar decisions

Gentlecare Ambulatory Anesthesia Servs. v MVAIC (2022 NY Slip Op 50785(U))The provider's verification-mailing affidavit raised factual issues on three claims, while MVAIC established payment of the fourth.
Bronx Community Med., P.C. v MVAIC (2024 NY Slip Op 51538(U))MVAIC obtained dismissal without prejudice because it had not received the provider's claim forms and the action was premature.
Active Care Med. Supply Corp. v MVAIC (2021 NY Slip Op 50450(U))MVAIC was entitled to dismissal, but conflicting proof of claim receipt required a hearing to determine whether dismissal would be with prejudice.
Right Aid Med. Supply Corp. v MVAIC (2022 NY Slip Op 50786(U))MVAIC's summary judgment motion was granted because the provider's action was brought after the three-year limitations period expired.
Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U))MVAIC failed to establish exhaustion or proper fee schedule payment, and claim-submission timeliness remained disputed.