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Iav Medical Supply, Inc. As Assignee of Julia Caldas v. Progressive Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 10, 2010

IAV MEDICAL SUPPLY, INC. AS ASSIGNEE OF JULIA CALDAS,
RESPONDENT,
v.
PROGRESSIVE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered January 15, 2009.

Iav Med. Supply, Inc. v Progressive Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, J J

The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff did not oppose the cross motion. The Civil Court, in effect, denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of defendant's cross motion for summary judgment, defendant submitted an affidavit of its personal injury protection litigation representative, which established that the denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was timely mailed 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also submitted was an affirmed peer review report, which set forth a factual basis and medical rationale for defendant's doctor's opinion that there was a lack of medical necessity for the medical supplies at issue. Since plaintiff did not oppose the cross motion, it failed to raise a triable issue of fact as to whether the supplies at issue were medically necessary. Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 10, 2010

20101210

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