March 12, 2009

Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U))

https://www.beynensonlaw.com/case-law/park-slope-med-surgical-supply-inc-v-new-york-cent-mut-fire-ins-co-2009ny-slip-op-50441u/

Court: Appellate Term, Second Department
Decided: March 12, 2009
Citation: 2009 NY Slip Op 50441(U) · 22 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 10 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141(A), 2009 NY Slip Op 50441(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion to dismiss the complaint. The insurer's claims-examiner affidavit, affirmed peer review report, and physician affidavit established prima facie that the claims had been properly and timely denied for lack of medical necessity. In response, the provider submitted a physician's affidavit disagreeing with the insurer's medical submissions and concluding that the supplies were medically necessary. That competing medical opinion created an issue of fact. The denial of the provider's own summary judgment motion was not at issue on the appeal.

Reported in New York Official Reports at Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50441(U))

[*1]

Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 50441(U) [22 Misc 3d 141(A)]

Decided on March 12, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2008-104 Q C.

Park Slope Medical and Surgical Supply, Inc. as assignee of MARIA E. ARIAS, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 19, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without 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 of lack of medical necessity. The court denied both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, finding that an issue of fact existed as to whether the supplies provided were medically necessary. The instant appeal by defendant ensued.

Defendant, through the submission of the affidavit of its no-fault litigation claims examiner, and the affirmed peer review report of Dr. Dumesh and the affidavit of Dr. Salayka, established a prima facie case that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

However, in response to defendant’s cross motion, plaintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]), the Civil Court properly denied defendant’s cross motion for summary judgment. Defendant’s remaining contention lacks merit. Accordingly, the order, insofar as appealed from, is affirmed.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 12, 2009

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

Held the insurer made a prima facie showing through the peer review, but the provider's doctor's affidavit disagreeing and concluding the supplies were necessary raised an issue of fact, so the cross motion was denied.

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, 94 (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 claims examiner's affidavit, with the peer review, established that the claims were properly and timely denied, though the motion failed on the medical-necessity rebuttal.

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

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)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.

Cited by (11)

A label shows how the later decision treated this one.

Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U)) FollowedThe insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U)) FollowedThe provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review.
Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U)) FollowedThe insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50188(U)) FollowedThe provider's doctor's affirmation raised a triable issue of medical necessity despite the insurer's sufficient peer reviews.
Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U)) FollowedThe treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form.
Neomy Med., P.C. v GEICO Ins. Co. (2012 NY Slip Op 51638(U)) FollowedThe provider's doctor's affidavit raised a triable issue of medical necessity in response to the insurer's peer review report.
Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U)) FollowedThe provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U)) FollowedThe provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion.
Favorite Health Prods., Inc. v GEICO Ins. Co. (2013 NY Slip Op 50201(U)) FollowedThe parties' medical submissions raised a triable issue about the equipment's medical necessity, precluding summary judgment for either side.
Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50875(U)) FollowedThe insurer proved its fee-schedule reductions, but the treating doctor's findings raised a factual issue on the remaining claims' necessity.

Show all 11 citing decisions

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))

Similar decisions

Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))The provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.
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 Progressive Ins. Co. (2011 NY Slip Op 52300(U))An insurer's substitute medical expert may testify on medical necessity, limited to the denial grounds in the original peer review report.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
All Borough Group Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51417(U))The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary.