Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp.

[*1] Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp. 2005 NYSlipOp 50452(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: March 31, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-523 K C

AMAZE MEDICAL SUPPLY INC., a/a/o LUC M. JOSEPH, Appellant,

against

TRAVELERS PROPERTY CASUALTY CORP., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (R. Garson, J.), entered on March 26, 2004, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § [*2]
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 on a peer review report. Where, as here, the report clearly indicates that the pertinent physician's reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer's opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the prescribed medical equipment in addition to the medical treatment provided, the defendant insurer is not obligated to seek further verification (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b]; cf. A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists], and such peer review is sufficient to raise an issue of fact precluding summary judgment in favor of plaintiff (cf. Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]). [*3]

Accordingly, plaintiff's summary judgment motion was properly denied.
Decision Date: March 31, 2005