April 30, 2014

New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))

https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-geico-ins-co-2014-ny-slip-op50776u/

Court: Appellate Term, Second Department
Decided: April 30, 2014
Citation: 2014 NY Slip Op 50776(U) · 43 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

New Way Med. Supply Corp. v Geico Ins. Co., 43 Misc 3d 138(A), 2014 NY Slip Op 50776(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding a triable medical-necessity issue. It preserved the findings for the reasons stated in EMC Health Prods., Inc. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.

Reported in New York Official Reports at New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))

New Way Med. Supply Corp. v Geico Ins. Co.

2014 NY Slip Op 50776(U) [43 Misc 3d 138(A)]

Decided on April 30, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1188 K C

New Way Medical Supply Corp. as Assignee of JESULA ST. VICTOR, Respondent,
against
Geico Ins. Co., Appellant.

[*1]

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 26, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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 on the ground that it had timely and properly denied the claim at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

For the reasons stated in EMC Health Prods., Inc. as Assignee of Brian Byers v Geico Ins. Co. (___ Misc 3d ___, 2014 NY Slip Op _____ [Appeal No. 2012-1208 K C], decided herewith), we find that defendant failed to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Moreover, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: April 30, 2014

Legal questions

A question 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

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the insurer's cross motion properly denied because the record showed a triable issue of fact as to the medical necessity of the services.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Similar decisions

Promed Durable Equip., Inc. v Geico Ins. (2014 NY Slip Op 50771(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51270(U))The insurer's summary judgment cross motion based on lack of medical necessity remained denied on appeal.
Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))The provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.