March 16, 2015

Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2015 NY Slip Op 50391(U))

https://www.beynensonlaw.com/case-law/rainbow-supply-of-ny-inc-v-geico-gen-ins-co-2015-ny-slip-op50391u/

Court: Appellate Term, Second Department
Decided: March 16, 2015
Citation: 2015 NY Slip Op 50391(U)
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., 2015 NY Slip Op 50391(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 doctor's affidavit failed to meaningfully address or rebut the insurer's peer-review conclusions that the supplies were unnecessary. The insurer submitted two peer-review reports and the reviewing chiropractors' affidavits, each supplying a factual basis and medical rationale for lack of medical necessity. The provider's opposing affidavit did not raise a triable issue, and the provider did not challenge the lower court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the CPLR 3212 (g) findings favoring the provider 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. (2015 NY Slip Op 50391(U))

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

Rainbow Supply of NY, Inc. as Assignee of GEORGIA BROWN and VANESSA THOMPSON, Respondent,
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, 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 reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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, 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.

In support of its cross motion, defendant submitted two peer review reports, along with affidavits executed by the chiropractors who had performed the peer reviews, which set forth a factual basis and medical rationale for each reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and 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 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: March 16, 2015

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's cross motion because its peer reviews with reviewer affidavits set forth a factual basis and medical rationale, and the provider's doctor's affidavit failed to meaningfully refer to or rebut them.

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.

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
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. (2014 NY Slip Op 50868(U))The provider's medical affidavit failed to rebut the insurer's peer review showing that the disputed supply lacked medical necessity.
Quality Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51268(U))The provider's doctor's affidavit failed to rebut three peer reviews establishing that the supplies lacked medical necessity.
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. (2011 NY Slip Op 52367(U))The insurer established lack of medical necessity through an affirmed peer review report, and the provider submitted no medical rebuttal.
Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U))The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.