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Manhattan Medical Imaging, P.C. As Assignee of Felix Matias, Jason Rivera and Jose Trinidad v. New York Central Mutual Fire Insurance Company

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


June 30, 2011

MANHATTAN MEDICAL IMAGING, P.C. AS ASSIGNEE OF FELIX MATIAS, JASON RIVERA AND JOSE TRINIDAD,
RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 24, 2009.

Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.

Decided on June 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and STEINHARDT, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's motion for summary judgment dismissing the complaint. The court found, with respect to plaintiff's second cause of action, that defendant had failed to timely deny the claim at issue on the ground that the assignor had failed to appear for scheduled independent medical examinations (IMEs) and, with respect to plaintiff's first and third causes of action, that the peer review reports submitted by defendant in support of its defense of lack of medical necessity were not, pursuant to CPLR 2106, in admissible form.

With respect to plaintiff's first and third causes of action, the affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claims at issue, 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers affirmed peer review reports which set forth a factual basis and medical rationale for the peer reviewers' determinations that there was a lack of medical necessity for the services rendered (see e.g. 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]). Consequently, defendant established its prima facie entitlement to summary judgment upon these causes of action.

In opposition to the motion, plaintiff failed to raise a triable issue of fact with respect to the first and third causes of action since plaintiff failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). While plaintiff asserted that Dr. Schechter's peer review report contained a stamped signature and, as a result, the peer review report was inadmissible, that assertion, without any indication as to why plaintiff believed that the signature was a stamped facsimile signature, was insufficient to raise an issue of fact (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50587[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, the branches of defendant's motion seeking summary judgment dismissing plaintiff's first and third causes of action should have been granted.

With respect to plaintiff's second cause of action, defendant established that it had timely denied the claim at issue on the ground that the assignor had failed to appear at scheduled IMEs, by submitting an affidavit from an employee of Transcion Corporation, which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on April 16, 2008 and May 9, 2008 in accordance with Transcion Corporation's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on May 8, 2008 and May 22, 2008 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since the appearance of the assignor at an IME was a "condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant was entitled to summary judgment dismissing plaintiff's second cause of action.

Accordingly, the Civil Court's order denying defendant's motion for summary judgment is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: June 30, 2011

20110630

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