June 2, 2006

Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co. (2006 NY Slip Op 51047(U))

https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-metropolitan-prop-cas-ins-co-2006-ny-slip-op-51047u/

Court: Appellate Term, Second Department
Decided: June 2, 2006
Citation: 2006 NY Slip Op 51047(U) · 12 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130(A), 2006 NY Slip Op 51047(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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.

An explanation of benefits form cannot substitute for the prescribed no-fault denial form under 11 NYCRR 65-3.8 (c) (1). The insurer's acknowledgment of receiving both equipment claims cured the provider's deficient proof of mailing. For one claim, a timely denial accompanied by a peer review stating a factual basis and medical rationale raised a triable medical necessity issue. For the other, the record lacked the required denial form, precluding the insurer's defenses. The Appellate Term, Second Department, modified the order to grant the provider partial summary judgment on the claim addressed by the explanation of benefits, remanded for interest and attorney's fees under Insurance Law § 5106 (a), and left the peer-reviewed claim for further proceedings.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co. (2006 NY Slip Op 51047(U))

[*1]

Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co.

2006 NY Slip Op 51047(U) [12 Misc 3d 130(A)]

Decided on June 2, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1328 K C.

Vista Surgical Supplies, Inc., as Assignee of John Huggins, Appellant,
against
Metropolitan Property and Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered March 25, 2005. The order denied plaintiff’s motion for summary judgment.

Order modified by granting plaintiff’s motion to the extent of granting partial summary judgment to plaintiff in the sum of $1,050 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim forms to defendant. However, said deficiency was cured by defendant’s acknowledgment of receipt of both of plaintiff’s claims in the affidavit of its claims adjuster (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant established that it timely denied both claims. It asserted that the claim for $525 was denied based upon the peer review report of Dr. Corcoran. Said peer review report, which was annexed to the denial of claim form, set forth a factual basis and medical rationale for [*2]Dr. Corcoran’s opinion that the medical equipment was medically unnecessary and, as such, was sufficient to raise a triable issue of fact (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]).

In the court below, and on appeal, plaintiff asserted that defendant may not use an explanation of benefits form in lieu of the prescribed denial of claim form in denying the claim for $1,050. It is well settled that a claim can only be properly denied on the prescribed denial of claim form (see 11 NYCRR 65-3.8 [c] [1]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]). Since the record herein fails to establish that defendant submitted a copy of the required denial of claim form, defendant is precluded from raising any defense as to said claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, supra).

Accordingly, the order is modified by granting plaintiff partial summary judgment as to its $1,050 claim and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claim.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 2, 2006

Legal questions (3)

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.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider established its prima facie case because the insurer's claims adjuster acknowledged receipt of both claims, curing the provider's insufficient proof of mailing.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 446 (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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the provider's moving papers did not establish mailing of the claim forms but the deficiency was cured by the insurer's acknowledgment of receipt in its adjuster's affidavit.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 90 (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 was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)

Held the peer review annexed to the timely denial set forth a factual basis and medical rationale that the equipment was unnecessary, raising a triable issue on that claim.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545) FollowedThe insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50452(U)) FollowedAn insurer need not seek further verification when a peer review finds no substantiation of equipment's medical necessity in documents obtained for review.

Cited by

Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496)A provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
W.H.O. Acupuncture, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52244(U))A denial citing a peer review preserves medical necessity when a factually sufficient report is supplied within the 30-day determination period.

Similar decisions

Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51189(U))The insurer's denials dated more than 30 days after final verification precluded its medical necessity defense.
Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50739(U))A denial form is not invalid for omitting irrelevant sections if it is approved and specifically identifies the medical-necessity defense.
Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))The insurer's examiner affidavit failed to establish mailing of pre-claim IME notices or the assignor's alleged nonappearances.
Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51031(U))The insurer's inconsistent affidavit about claim receipt and disputed peer review signatures defeated summary judgment on medical necessity.