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Manhattan Medical Imaging, P.C. As Assignee of Vintonyak Bogdan v. Praetorian Ins. Co

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


August 5, 2011

MANHATTAN MEDICAL IMAGING, P.C. AS ASSIGNEE OF VINTONYAK BOGDAN, RESPONDENT,
v.
PRAETORIAN INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered May 28, 2009.

Manhattan Med. Imaging, P.C. v Praetorian 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2011

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

The order, insofar as appealed from as limited by the brief, 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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court made a finding, pursuant to CPLR 3212 (g), that defendant's NF-10 denial of claim forms were timely, but denied defendant's cross motion on the ground that the peer review report annexed to defendant's cross motion did not establish a lack of medical necessity for the services rendered.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and a medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered. Defendant's showing of a lack of medical necessity was not rebutted by plaintiff. In view of the foregoing, and the Civil Court's CPLR 3212 (g) finding that defendant's denial of claim forms were timely, 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]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: August 05, 2011

20110805

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