Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered October 7, 2009.
MSSA Corp. v Redland Ins. Co.
Decided on August 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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: STEINHARDT, J.P., GOLIA and RIOS, JJ
The order denied defendant's motion for summary judgment.
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, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant in support of its motion for
summary judgment was sufficient to establish that defendant's denial
of claim forms, which denied the claims at issue on the ground of lack
of medical necessity, had been timely mailed 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
; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17
Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted,
among other things, an affirmed peer review report, as well as an affirmation executed
by the physician who had performed the peer review, 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 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 report (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]), defendant's motion for
summary judgment 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]).
Golia and Rios, JJ., concur.
Steinhardt, J.P., dissents in a separate memorandum.
Steinhardt, J.P., dissents and votes to affirm the order in the following memorandum:
It is undisputed that plaintiff did not submit medical opposition to defendant's motion for summary judgment, which was based on lack of medical necessity. However, I am of the opinion that the documentation submitted by defendant in support of its motion is insufficient to shift the burden to plaintiff.
"Lack of medical necessity is a defense to an action to recover
no-fault benefits, which an insurer may assert pursuant to a timely
claim denial, based on . . . a sufficiently detailed peer review
report" (Amaze Med. Supply v Eagle Ins., 2 Misc 3d 139[A], 2004 NY
Slip Op 50279[U] [App Term, 2d
& 11th Jud Dists 2004]). To support a motion for summary judgment, a
peer review report must set forth a factual basis and medical rationale
sufficient to establish, prima facie, the lack of medical necessity (see
Urban Radiology, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010
NY Slip Op 52157[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
In the instant matter, the peer review report of Dr. Ross did not "shed any light" on the assignor's condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. "Bilateral shoulder and left elbow" injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, ...