SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 26, 2011
WE DO CARE MEDICAL SUPPLY, INC. AS ASSIGNEE OF MARTINA ECHEVARRIA,
AMERICAN TRANSIT INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 25, 2010.
We Do Care Med. Supply, Inc. v American Tr. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ .
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. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff's claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff's assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.
In support of its cross motion, defendant submitted, among other things, medical peer review reports which set forth factual bases and medical rationales for the doctors' determinations that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that such supplies were not medically necessary was not rebutted by plaintiff.
In light of the foregoing, and the Civil Court's implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant's cross motion for summary judgment dismissing the complaint should have been 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., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011
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