January 13, 2012

Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50050(U))

https://www.beynensonlaw.com/case-law/sky-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op50050u/

Court: Appellate Term, Second Department
Decided: January 13, 2012
Citation: 2012 NY Slip Op 50050(U) · 34 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 140(A), 2012 NY Slip Op 50050(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 chiropractor/acupuncturist's affidavit and peer review established lack of medical necessity, and the provider did not rebut them. The insurer also submitted an affidavit showing that its denial of the medical-supply claim was timely mailed in accordance with standard office practices and procedures. The reviewing practitioner's affidavit and report provided a factual basis and medical rationale for finding the supplies medically unnecessary. That unrebutted showing entitled the insurer to judgment in the assigned no-fault action. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.

Reported in New York Official Reports at Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50050(U))

[*1]

Sky Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50050(U) [34 Misc 3d 140(A)]

Decided on January 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2012

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2009-1721 K C.

Sky Medical Supply, Inc. as Assignee of WENDY FISHER, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 8, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other [*2]things, an affidavit by its chiropractor/acupuncturist, together with her peer review report, which set forth a factual basis and medical rationale for her determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. In light of the foregoing, defendant’s motion for summary judgment dismissing the complaint should have been 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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 13, 2012

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the chiropractor/acupuncturist's affidavit and peer review set forth a factual basis and medical rationale that the supplies were unnecessary, and the provider did not rebut it, so the insurer won summary judgment.

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.

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 insurer's affidavit sufficient to establish that the denial was timely mailed in accordance with its standard office practices and procedures.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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 Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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 50260(U))The insurer's unrebutted chiropractic peer reviews established that the disputed supplies lacked medical necessity.
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.
Mutual Care Med. Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 51734(U))The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal.
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.
Queens Med. Supply, Inc. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50414(U))The insurer's unrebutted peer review reports established lack of medical necessity for the supplies at issue.