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Van Courtland Medical Care, 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 Appellate Term, Second Department


October 27, 2011

VAN COURTLAND MEDICAL CARE, 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 (Reginald A. Boddie, J.), entered March 18, 2010.

Van Courtland Med. Care, P.C. v Praetorian Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20 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 as denied the branch of its motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20.

In support of its motion, defendant submitted, among other things, an affirmed peer review report which set forth the factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services at issue. Defendant's showing that such services 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, the branch of defendant's motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20 should have been granted (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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 the branch of defendant's motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20 is granted.

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

Decision Date: October 27, 2011

20111027

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