October 30, 2013

Amherst Med. Supply, LLC v A. Cent. Ins. Co. (2013 NY Slip Op 51800(U))

Headnote

The insurer's peer review lacked a factual basis or medical rationale for finding the medical supplies unnecessary. Its chiropractor submitted a report and affidavit containing only a conclusory assertion that durable medical goods were not needed. That assertion failed to eliminate triable issues of medical necessity and did not satisfy the insurer's prima facie burden on summary judgment. Independently, the treating chiropractor's affidavit specified the assignor's conditions and described the intended benefits of each prescribed supply, raising a triable issue. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the challenged portion of the insurer's motion to dismiss the assigned no-fault claims on summary judgment.

Reported in New York Official Reports at Amherst Med. Supply, LLC v A. Cent. Ins. Co. (2013 NY Slip Op 51800(U))

[*1]
Amherst Med. Supply, LLC v A. Cent. Ins. Co.
2013 NY Slip Op 51800(U) [41 Misc 3d 133(A)]
Decided on October 30, 2013
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT


PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570565/13.
Amherst Medical Supply, LLC, a/a/o Darlene Vinson-Sims, Plaintiff-Respondent,

against

A. Central Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered May 31, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered May 31, 2013, insofar as appealed from, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this action to recover assigned first-party no-fault benefits. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that “I do not find the need for . . . durable medical goods,” was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013

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