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Alur Medical Supply, Inc. As Assignee of Glady Ferrer v. Geico Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


March 15, 2011

ALUR MEDICAL SUPPLY, INC. AS ASSIGNEE OF GLADY FERRER,
RESPONDENT,
v.
GEICO INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 16, 2009, deemed from a judgment of the same court entered October 26, 2009 (see CPLR 5501 [c]).

Alur Med. Supply, Inc. v GEICO Ins. Co.

Decided on March 15, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment, entered pursuant to the September 16, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,498.75.

ORDERED that the judgment is reversed, without costs, so much of the order entered September 16, 2009 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied. In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted a motion by plaintiff for summary judgment and denied a cross motion by defendant for summary judgment dismissing the complaint, due to the failure of defendant's claims examiner to explain the handwritten additions to defendant's denial of claim forms. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit submitted by defendant's claims examiner in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the equipment provided was not medically necessary, were 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The fact that there were handwritten notations on the claim denial forms did not affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.

In addition, the affirmed peer review reports submitted by defendant's doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the medical equipment at issue (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]). Contrary to plaintiff's assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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 opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. 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]). In view of the foregoing, plaintiff's motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant's cross motion.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: March 15, 2011

20110315

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