Five Boro Med. Equip., Inc. v. A. Cent. Ins. Co.

Full title: FIVE BORO MEDICAL EQUIPMENT, INC. a/a/o Veronica Hall…

Court: Supreme Court, Appellate Term, First Department, New York.

Date published: Mar 28, 2016

2016 N.Y. Slip Op. 50412 (N.Y. App. Term 2016)

36 N.Y.S.3d 47

Opinion

No. 571075/12.

03-28-2016

FIVE BORO MEDICAL EQUIPMENT, INC. a/a/o Veronica Hall, Plaintiff–Appellant, v. A. CENTRAL INS. CO., Defendant–Respondent.

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 N.Y. 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 A.D.2d 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 (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 N.Y. Slip Op 51800[U][App Term, 1st Dept.2013] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.