August 12, 2010

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co. (2010 NY Slip Op 51452(U))

https://www.beynensonlaw.com/case-law/mega-supply-billing-inc-v-larendon-natl-ins-co-2010-ny-slip-op51452u/

Court: Appellate Term, Second Department
Decided: August 12, 2010
Citation: 2010 NY Slip Op 51452(U) · 28 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Discovery and procedure Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 28 Misc 3d 137(A), 2010 NY Slip Op 51452(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 provider failed to rebut the insurer's peer review or justify deferring summary judgment to obtain the reviewer's underlying records. The insurer established timely denial and submitted an affirmed peer review supplying a factual basis and medical rationale for finding the medical supplies unnecessary. The provider offered no doctor's affirmation rebutting those conclusions. Its assertion that it lacked the reviewer's supporting materials did not establish that those documents were needed to raise a triable issue under CPLR 3212 (f). It also failed to show that it had served discovery demands despite ample opportunity before the motion. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in favor of the insurer.

Reported in New York Official Reports at Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co. (2010 NY Slip Op 51452(U))

[*1]

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co.

2010 NY Slip Op 51452(U) [28 Misc 3d 137(A)]

Decided on August 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-2232 K C.

Mega Supply & Billing, Inc. a/a/o WILHELMINA LAING, Appellant,
against
Larendon National Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered October 15, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had timely denied plaintiff’s claim on the ground of lack of medical necessity and that, based on an annexed affirmed peer review report, it had established that the medical supplies
provided were not medically necessary. In opposition to the motion, plaintiff argued that defendant had failed to establish the timely mailing of its denial of claim form and
that defendant had failed to annex copies of the medical reports and/or records upon which the peer reviewer had relied in reaching his conclusion that the supplies provided were not medically necessary. The Civil Court granted defendant’s motion, finding that plaintiff had failed to rebut defendant’s showing of a lack of medical necessity.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claim at issue on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided (see e.g. 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 & [*2]11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment.

In opposition to the motion, plaintiff failed to raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, plaintiff failed to demonstrate that it needed said documents in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 12, 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, the provider offered no doctor's rebuttal, and its lack of the reviewer's records did not justify relief under CPLR 3212 (f).

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 challenge and held the insurer's affidavit established that it timely denied the claim on medical-necessity grounds.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The 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))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))The provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment.

Cited by

Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.

Similar decisions

Mega Supplies Billing, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51418(U))The insurer's denial was not fatally defective, and its unrebutted affirmed peer review established lack of medical necessity for the supplies.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
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.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51771(U))The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment.
MSSA Corp. v Redland Ins. Co. (2011 NY Slip Op 51606(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the supplies as medically unnecessary.