SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
February 14, 2011
BATH MEDICAL SUPPLY, INC. AS ASSIGNEE OF LARISA VASILENKO,
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 1, 2009. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
Bath Med. Supply, Inc.
New York Cent. Mut. Fire Ins. Co.
Decided on February 14, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
ORDERED that the order is reversed, without costs, defendant's motion for summary judgment is granted and plaintiff's cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the supplies provided were not medically necessary. Plaintiff opposed defendant's motion and cross-moved for summary judgment. The Civil Court denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment. This appeal by defendant ensued.
In support of its motion for summary judgment, defendant submitted,
among other things, an affirmed peer review report from its doctor and
sworn peer review reports from its chiropractor, which set forth a
factual basis and medical rationale for the conclusion that there was
no medical necessity for the medical supplies at issue. As plaintiff
conceded that the denials were timely, defendant's prima facie
entitlement to summary judgment was established (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]). In opposition to defendant's motion,
plaintiff failed to raise a triable issue of fact as it failed to proffer an affidavit from a health-care
practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review
reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App
Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court's order is reversed, defendant's
motion for summary judgment is granted and plaintiff's cross motion for summary judgment is denied
(see Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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., Weston and Rios, JJ., concur. Decision Date: February 14, 2011
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