December 17, 2014

Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2014 NY Slip Op 51827(U))

https://www.beynensonlaw.com/case-law/rainbow-supply-of-ny-inc-v-geico-gen-ins-co-2014-ny-slip-op51827u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51827(U) · 46 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Discovery and procedure
Legal questions: Lack of medical necessity (see the maps)

Cite as

Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co., 46 Misc 3d 131(A), 2014 NY Slip Op 51827(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 was denied, and the provider's CPLR 3212 (g) findings were preserved on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Citing EMC Health Prods., Inc. v Geico Ins. Co., the court found no sufficient basis to strike those findings and, upon reviewing the record, identified a triable issue of medical necessity.

Reported in New York Official Reports at Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2014 NY Slip Op 51827(U))

[*1]

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

2014 NY Slip Op 51827(U) [46 Misc 3d 131(A)]

Decided on December 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1973 K C

Rainbow Supply of NY, Inc. as Assignee of JOHN PERRY, Respondent,
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 16, 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 claims 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, in effect, 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.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Moreover, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the supplies at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decision Date: December 17, 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)

Affirmed denial of the insurer's cross motion because, on review of the record, a triable issue of fact existed regarding the medical necessity of the supplies.

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.

Cited in this decision

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

EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U)) FollowedThe insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.

Similar decisions

New Way Med. Supply Corp. v Geico Ins. Co. (2014 NY Slip Op 50776(U))The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld.
Quality Health Prods., Inc v Geico Gen. Ins. Co. (2016 NY Slip Op 51430(U))The insurer's cross motion for summary judgment based on lack of medical necessity was denied because a triable factual issue remained.
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.
Ortho Prods. & Equipments, Inc. v Geico Gen. Ins. Co. (2014 NY Slip Op 51269(U))The insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal.
Ortho Prods. & Equip., Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 51263(U))The insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal.