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Elmont Open MRI & Diagnostic Radiology, P.C. Doing Business as ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY as Assignee of JOANNE LINSALATO, Respondent v. Clarendon National Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


November 26, 2010

ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. DOING BUSINESS AS ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY AS ASSIGNEE OF JOANNE LINSALATO, RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY, APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 12, 2009.

The opinion of the court was delivered by: Present: Iannacci, J.P.,

Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co.

Decided on November 26, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

NICOLAI and MOLIA, JJ

The order denied defendant's motion for summary judgment.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The District Court denied the motion, stating that although defendant had timely denied plaintiff's claims, the peer review report upon which the denials were based was insufficient. The instant appeal by defendant ensued.

In support of its motion, defendant submitted affidavits of an employee of its claims division which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affirmed peer review report submitted in support of defendant's motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]).

Since defendant made a prima facie showing that the services at issue lacked medical necessity, the burden shifted to plaintiff to rebut defendant's showing. As plaintiff, in opposition to defendant's motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Nicolai and Molia, JJ., concur. Decision Date: November 26, 2010

20101126

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