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Trimed Medical Supply, Inc. As Assignee of Natalie Nevins, Respondent v. Clarendon National 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

TRIMED MEDICAL SUPPLY, INC. AS ASSIGNEE OF NATALIE NEVINS, RESPONDENT,
v.
CLARENDON NATIONAL INS. CO., DEFENDANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), dated April 17, 2008.

Trimed Med. Supply, Inc. v Clarendon Natl. Ins. Co.

Decided on October 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and RIOS, 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 as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross 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 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 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]). Plaintiff's contention that the order denying defendant's cross motion for summary judgment should be affirmed since plaintiff was not in possession of the documents that the peer reviewer relied upon is without merit (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

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., Weston and Rios, JJ., concur.

Decision Date: October 27, 2011

20111027

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