SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
December 16, 2011
ALFA MEDICAL SUPPLIES AS ASSIGNEE OF BETZAIDA OBLITAS, RESPONDENT,
EVEREADY INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 27, 2010.
Alfa Med. Supplies v Eveready 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The order, insofar as appealed from, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff's claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff's assignor. Defendant appeals from so much of the 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 a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that the supplies were not medically necessary was unrebutted by plaintiff.
As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's cross motion for summary judgment dismissing the complaint is 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.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011
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