May 18, 2015

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50791(U))

https://www.beynensonlaw.com/case-law/xvv-inc-v-new-york-cent-mut-fire-ins-co-2015-ny-slip-op50791u/

Court: Appellate Term, Second Department
Decided: May 18, 2015
Citation: 2015 NY Slip Op 50791(U) · 47 Misc 3d 151(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co., 47 Misc 3d 151(A), 2015 NY Slip Op 50791(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 insurer's motion for summary judgment based on lack of medical necessity was denied because the record presented a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's action for assigned no-fault benefits. It stated that a factual issue remained concerning the medical necessity of the supplies provided, without discussing the evidence.

Reported in New York Official Reports at Xvv, Inc. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50791(U))

[*1]

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co.

2015 NY Slip Op 50791(U) [47 Misc 3d 151(A)]

Decided on May 18, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-833 K C

XVV, Inc. as Assignee of JEROME BARROW, 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 February 1, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of a lack of medical necessity.

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, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of a lack of medical necessity.

On this record, there is a triable issue of fact as to whether there was a lack of medical necessity for the supplies provided. Consequently, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s complaint on the ground of a lack of medical necessity was properly denied (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: May 18, 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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Affirmed denial of the insurer's motion because the record showed a triable issue of fact as to whether the supplies were medically necessary.

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.

Similar decisions

XVV, Inc. v Farmington Cas. Co. (2017 NY Slip Op 51231(U))The provider's medical affidavit raised a triable issue of medical necessity despite an adequately supported peer review.
XVV, Inc. v Interboro Ins. Co. (2017 NY Slip Op 51468(U))The insurer failed to show that it had requested the assignor's affidavit from the provider, defeating its prematurity defense.
Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))The parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity.
VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))The insurer proved timely denials and an unrebutted lack of medical necessity through its litigation examiner's affidavit and IME report.
V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation.