June 3, 2016

Provek Plus, Inc. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50870(U))

https://www.beynensonlaw.com/case-law/provek-plus-inc-v-tri-state-consumer-ins-co-2016-ny-slip-op50870u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50870(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Provek Plus, Inc. v Tri-State Consumer Ins. Co., 2016 NY Slip Op 50870(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 justified renewal by explaining an inadvertent error in the mail clerk's employment date in the original affidavit. The Civil Court had denied an unopposed summary judgment motion for lack of medical necessity because the affidavit raised a factual issue, then denied the unopposed renewal motion. Under CPLR 2221 (e) (2) and (3), the correcting affidavit supplied a reasonable justification for the earlier error. The insurer established timely mailing of verification requests and denials and submitted an unrebutted peer review with a factual basis and medical rationale. The Appellate Term, Second Department, reversed, granted renewal, vacated the prior order, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Provek Plus, Inc. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50870(U))

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

Provek Plus, Inc., as Assignee of AYLEEN LUKE, Respondent,
against
Tri-State Consumer Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered July 8, 2013. The order denied defendant’s motion for leave to renew its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered April 23, 2013.

ORDERED that the order entered July 8, 2013 is reversed, with $30 costs, the branch of defendant’s motion seeking leave to renew is granted, and, upon renewal, the order entered April 23, 2013 is vacated and defendant’s prior motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered April 23, 2013, the Civil Court denied defendant’s unopposed motion, finding that the affidavit of defendant’s mail clerk demonstrated the existence of a triable issue of fact. Immediately thereafter, defendant moved for leave to renew based upon an affidavit which set forth that the mail clerk’s affidavit had contained an inadvertent typographical error, and, upon renewal, for summary judgment dismissing the complaint. By order entered July 8, 2013, the Civil Court denied defendant’s unopposed motion.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [2], [3]; see Empire State Conglomerates v Mahbur, 105 AD3d 898, 899 [2013]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585-586 [2012]). Here, defendant submitted an affidavit explaining that the affidavit of defendant’s mail clerk, which was submitted in support of defendant’s prior motion for summary judgment, contained an inadvertent typographical error with respect to the date on which the mail clerk was first employed by defendant. As a result, leave to renew should have been granted (see Miller v Duffy, 162 AD2d 438 [1990]; Olean Urban Renewal Agency v Herman, 101 AD2d 712 [*2][1984]).

The papers submitted by defendant in support of its motion were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the verification requests and denial of claim forms at issue, which denied plaintiff’s claims on the ground that the supplies furnished to plaintiff’s assignor lacked medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the determination of defendant’s doctor that there was no medical necessity for the supplies furnished. As defendant’s prima facie showing was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the order entered July 8, 2013 is reversed, the branch of defendant’s motion seeking leave to renew is granted, and, upon renewal, the order entered April 23, 2013 is vacated and defendant’s prior motion for summary judgment dismissing the complaint is granted.

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

Decision Date: June 03, 2016

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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

On renewal correcting a typographical error in the mail clerk's affidavit, held the insurer's papers established timely mailing of its verification requests and medical-necessity denials.

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.

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

Granted the insurer summary judgment because its affirmed peer review set forth a factual basis and medical rationale for finding the supplies unnecessary and the provider offered no rebuttal.

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.

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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe 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)) FollowedThe 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)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Health Plus Med., P.C. v American Mfrs. Mut. Ins. Co. (2008 NY Slip Op 51444(U))The provider failed to lay a business-record foundation, and the insurers failed to prove timely mailing of verification requests and denials.
Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment.
Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50401(U))The provider proved its first claim, while its verification-mailing affidavit raised a factual issue on whether the second claim was premature.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
Infinity Health Prods., Ltd. v Progressive Ins. Co. (2008 NY Slip Op 50345(U))The insurer failed to establish timely mailing of its follow-up verification request because the date stamp contradicted its affidavit.