February 19, 2020

Omega 18 Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50235(U))

https://www.beynensonlaw.com/case-law/omega-18-inc-v-global-liberty-ins-co-of-n-y-2020-ny-slip-op50235u/

Court: Appellate Term, First Department
Decided: February 19, 2020
Citation: 2020 NY Slip Op 50235(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Omega 18 Inc. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 50235(U) (App Term, 1st Dept 2020)

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 affirmed peer review established that the prescribed medical supplies were unnecessary or redundant. The report supplied a factual basis and medical rationale for finding no medical necessity for a portable whirlpool, heat lamp and massager, explaining that the assignor already received physical, acupuncture and chiropractic therapy. The provider opposed summary judgment with an attorney's affirmation, a prescription and claim forms, but no medical evidence or other competent proof of necessity. That submission did not raise a triable issue. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion and dismissed the complaint.

Reported in New York Official Reports at Omega 18 Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50235(U))

Omega 18 Inc. a/a/o Mena Jenny, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Naita A. Semaj, J.), entered April 2, 2019, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Naita A. Semaj, J.), entered April 2, 2019, insofar as appealed from, reversed, without costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the underlying first-party no-fault action. The proof submitted by defendant, including the affirmed peer review report of its physician, set forth a factual basis and medical rationale for the conclusion that the medical supplies plaintiff provided to its assignor, including a portable whirlpool, heat lamp and massager, were not medically necessary (see Triangle R Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). The report explained that the assignor was already receiving physical, acupuncture and chiropractic therapy for her injuries and that the equipment at issue was either unnecessary or redundant (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [App Term, 1st Dept 2010]).

Plaintiff’s opposition, consisting of an attorney’s affirmation, prescription and various claim forms, was unaccompanied by any medical evidence or other competent proof of medical necessity, and failed to raise a triable issue (see TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Karina K. Acupuncture, P.C. v AIG Centennial Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50415[U] [App Term, 1st Dept 2016]; Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U] [App Term, 1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 19, 2020

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the affirmed peer review established that the whirlpool, heat lamp and massager were unnecessary or redundant given ongoing therapy, and the attorney's affirmation with prescription and claim forms, lacking medical evidence, raised no triable issue.

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 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U)) FollowedThe provider's unsworn medical report failed to rebut the insurer's showing that the medical supplies were unnecessary.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.
Karina K. Acupuncture, P.C. v AIG Centennial Ins. Co. (2016 NY Slip Op 50415(U))The insurer's IME report established that further acupuncture was unnecessary, and the provider offered no competent medical evidence in opposition.
Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co. (2014 NY Slip Op 51886(U))The insurer's peer review established lack of medical necessity, and the provider's attorney affirmation raised no triable issue.

Cited by

A label shows how the later decision treated this one.

Jamaica Chiropractic PT PLLC v MVAIC (2024 NY Slip Op 50614(U)) FollowedMVAIC's IME report established lack of medical necessity, and the provider's opposition supplied no competent medical proof.

Similar decisions

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.
Sufficient Chiropractic Care, P.C. v Global Liberty Ins. Co. (2021 NY Slip Op 50879(U))The insurer's summary judgment motion was granted because the provider's affidavit failed to rebut the showing of lack of medical necessity.
Five Boro Med. Equip., Inc. v A. Cent. Ins. Co. (2016 NY Slip Op 50412(U))The insurer's incomplete peer review failed to support two denials, and the provider's medical affidavit raised factual issues on two other claims.
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.
Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U))The insurer's unrebutted peer review testimony established that electromyography and nerve conduction testing lacked medical necessity.