December 15, 2006
Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-travelers-ins-co-2006-ny-slip-op-52502u/
- Decided
- December 15, 2006
- Citation
- 2006 NY Slip Op 52502(U) · 14 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later history
- Affirmed by Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2008 NY Slip Op 03199)
- Later treatment
- Distinguished in 2, contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
- Issues
- Medical necessity
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U))
| Vista Surgical Supplies, Inc. v Travelers Ins. Co. |
| 2006 NY Slip Op 52502(U) [14 Misc 3d 128(A)] |
| Decided on December 15, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1781 K C.
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 14, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses 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]). The denial of claim forms, annexed to plaintiff’s moving papers, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).
The defendant established that it mailed denial forms within the prescribed 30-day period (11 NYCRR 65-3.8 [c]) through the affidavit of defendant’s representative detailing the standard office procedure for such mailing, which affidavit was sufficient to give rise to the presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Attached to each denial form was a detailed peer review report which purported to be “affirmed” by defendant’s doctor pursuant to CPLR 2106. They contained a stamped facsimile of the doctor’s signature. On appeal, plaintiff objects, as it did in the court below, to the admissibility [*2]of the reports on the ground that they did not comply with CPLR 2106. In our view, under the circumstances presented, the peer review reports were not in admissible form (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632
[1971]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 102 [1965]) and, thus, defendant has failed to raise a triable issue of fact as to medical necessity. We note in passing that there is nothing in the record to indicate that the doctor himself stamped his signature. In view of the foregoing, plaintiff is entitled to summary judgment and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Pesce, P.J., and Belen, J., concur.
Weston Patterson, J., dissents in a separate memorandum.
Weston Patterson, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:
In my view, the stamped facsimile of the doctor’s signature does not render his affirmed peer review reports inadmissible. General Construction Law § 46 states, “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing” (emphasis added) (see also Rulle v Ivari Intl., 192 Misc 2d 266 [App Term, 2d & 11th Jud Dists 2002]). Consequently, even if the doctor’s signature was stamped, it is sufficient to comply with CPLR 2106, which requires the statement to be “subscribed and affirmed.”
Accordingly, defendant’s submissions raise a triable issue of fact as to medical necessity, and I would vote to affirm.
Decision Date: December 15, 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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)
Held the peer review reports bearing a stamped facsimile signature were not in admissible form under CPLR 2106, so the insurer failed to raise a triable issue on medical necessity.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.
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, the insurer's denial forms showing the receipt dates adequately establishing that the claims were sent and received.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
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 insurer's denial forms stating the receipt dates established that the provider sent and the insurer received the claims; the insurer's standard-practice affidavit also raised a presumption its denials were mailed.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (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.
- Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U)) FollowedThe insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
Cited by
A label shows how the later decision treated this one.
- Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2008 NY Slip Op 03199) AffirmedThe insurer's peer review reports were inadmissible because their facsimile signatures lacked evidence of placement or authorization.
- Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2025 NY Slip Op 50315(U)) DistinguishedElectronically signed peer review reports are admissible when properly subscribed and affirmed under CPLR 2106.
- Jesa Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 29386) DistinguishedThe physician's affirmation authenticated the electronic signature on the peer review, supporting the medical-necessity denial.
- Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U)) Contrasted (cf., but see)The insurer's unrebutted peer review established lack of medical necessity for two claims, but it failed to prove another charge excessive.
- Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U)) FollowedThe insurer's peer review reports were inadmissible because it did not show that the reviewing doctor placed the stamped signatures on them.
Similar decisions
- 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.
- Vista Surgical Supplies, Inc. v American Protection Ins. Co. (2008 NY Slip Op 51229(U))The insurer's unrebutted peer review established that the medical supplies were unnecessary and supported dismissal of the provider's claims.
- 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 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.
- Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(U))The insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature.