March 28, 2016

Five Boro Med. Equip., Inc. v A. Cent. Ins. Co. (2016 NY Slip Op 50412(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment dismissing a first-party no-fault action. The defendant's documentary submissions were determined to be sufficient to establish that its denial of claim forms were timely and properly mailed, and that the peer review reports of defendant's chiropractor were in admissible form. However, the copy of a peer review report submitted by the defendant to establish the lack of medical necessity for certain medical supplies was incomplete and insufficient to establish the defense of lack of medical necessity. A medical affidavit submitted by the plaintiff was deemed sufficient to raise a triable issue of fact as to the medical necessity of the medical supplies at issue. As a result, the court reversed the lower court's decision, denied the defendant's motion, and reinstated the complaint. The holding of the court was that the defendant-insurer's motion for summary judgment should have been denied, and the complaint reinstated.

Reported in New York Official Reports at Five Boro Med. Equip., Inc. v A. Cent. Ins. Co. (2016 NY Slip Op 50412(U))

Five Boro Medical Equipment, Inc. a/a/o Veronica Hall, Plaintiff-Appellant,
against
A. Central Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.) entered August 22, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nancy M. Bannon, J.) entered August 22, 2013, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., ____ AD3d_____, 2016 NY Slip Op 00916 [2016]), and that the peer review reports of defendant’s chiropractor were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the copy of the November 4, 2011 peer review report, ostensibly submitted by defendant to establish the lack of medical necessity for the medical supplies underlying plaintiff’s claims in the amounts of $481.55 and $540.94, was incomplete, since certain pages of the report were missing, and was thus insufficient to establish the defense of lack of medical necessity.

The October 25, 2011 peer review report submitted by defendant made a prima facie showing that the medical supplies underlying plaintiff’s claims in the amounts of $1,107.70 and $1,150 were not medically necessary. However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U][App Term, 1st Dept. 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: March 28, 2016