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Enko Enterprises International, Inc., A/A/O Pena Felix v. Clarendon National Insurance Company

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 30, 2010

ENKO ENTERPRISES INTERNATIONAL, INC., A/A/O PENA FELIX,
PLAINTIFF-RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.

Per curiam.

Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co.

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2010

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered March 18, 2009, which denied its motion for summary judgment dismissing the complaint.

Order (Raul Cruz, J.), entered March 18, 2009, insofar as appealed from, reversed, without costs, defendant's motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits. Defendant demonstrated, through the affirmed peer review report of a physician, that the medical supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note that the physician opined that the medical supplies were not medically necessary because the assignor was already receiving both physical and chiropractic therapy for his injuries, treatment that the physician concluded was sufficient under the circumstances. In opposition, plaintiff, which did not submit any evidence regarding the medical necessity of the supplies, failed to raise a triable issue. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. DECEMBER 30, 2010 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT May 2010 Term McKeon, P.J., Schoenfeld, Shulman, JJ. Enko Enterprises International, Inc., NY County Clerk's No. a/a/o Pena Felix, 570736/09 Plaintiff-Respondent, - against- Calendar No. 10-125 Clarendon National Insurance Company, Defendant-Appellant. Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered March 18, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Raul Cruz, J.), entered March 18, 2009, insofar as appealed from, reversed, without costs, defendant's motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits. Defendant demonstrated, through the affirmed peer review report of a physician, that the medical supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note that the physician opined that the medical supplies were not medically necessary because the assignor was already receiving both physical and chiropractic therapy for his injuries, treatment that the physician concluded was sufficient under the circumstances. In opposition, plaintiff, which did not submit any evidence regarding the medical necessity of the supplies, failed to raise a triable issue. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 30, 2010

Decision Date: December 30, 2010

20101230

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