November 26, 2013

Rainbow Supply of NY, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 52009(U))

https://www.beynensonlaw.com/case-law/rainbow-supply-of-ny-inc-v-geico-gen-ins-co-2013-ny-slip-op52009u/

Court: Appellate Term, Second Department
Decided: November 26, 2013
Citation: 2013 NY Slip Op 52009(U) · 41 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Rainbow Supply of NY, Inc. v GEICO Gen. Ins. Co., 41 Misc 3d 140(A), 2013 NY Slip Op 52009(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 unrebutted peer review established that the medical supply lacked medical necessity. The Civil Court denied both parties' summary judgment motions and limited trial to medical necessity under CPLR 3212 (g). In support of its cross motion, the insurer submitted a peer review report and the reviewing chiropractor's affidavit, supplying a factual basis and medical rationale for the determination. The provider did not rebut that showing or challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Rainbow Supply of NY, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 52009(U))

[*1]

Rainbow Supply of NY, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 52009(U) [41 Misc 3d 140(A)]

Decided on November 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3161 K C.

Rainbow Supply of NY, Inc. as Assignee of TRACEY WATTS, Respondent, —
against
GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the supply at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a peer review report and an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supply at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (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, 11th & 13th Jud Dists 2009]; Delta Diagnostic [*2]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 & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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

Granted the insurer summary judgment because its peer review report and the reviewer's affidavit set forth a factual basis and medical rationale for lack of medical necessity of the supply, and the provider did not rebut it.

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.

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

Sky Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50764(U))The insurer's unrebutted peer review established that the disputed supply was not medically necessary and warranted dismissal.
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.
New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))The insurer's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered.
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52003(U))The insurer's unrebutted sworn peer review established lack of medical necessity for the billed services.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary.