Amaze Med. Supply Inc. v Allstate Ins. Co.

[*1] Amaze Med. Supply Inc. v Allstate Ins. Co. 2006 NY Slip Op 51412(U) [12 Misc 3d 142(A)] Decided on July 12, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 10, 2006; it will not be published in the printed Official Reports.

Decided on July 12, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-858 K C. NO. 2005-858 K C

AMAZE MEDICAL SUPPLY INC. a/a/o MARIE GACHETTE, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered March 18, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud
Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

Defendant timely denied the claims on the ground of lack of medical necessity based upon a peer review report. The peer reviewer set forth a "factual basis and medical rationale" (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 97 [App Term, 9th & 10th Jud Dists 2004]) for his conclusion that there was no medical necessity for the supplies furnished based on the documentation provided to him. This was sufficient to raise a triable issue of the supplies' medical necessity. We note that contrary to plaintiff's contention, under the facts presented the [*2]reviewer's mere reference to unavailable reports and notes does not require the inference that the reviewer considered the information in his possession insufficient to permit a medical necessity determination and that recourse to the verification process was necessary to amplify the record. Accordingly, plaintiff's motion for summary judgment was properly denied.

Weston Patterson, J.P., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 12, 2006