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Comfort Supply, Inc. As Assignee of Paul A. Russell v. Progressive Northeastern Insurance Co

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


December 19, 2011

COMFORT SUPPLY, INC. AS ASSIGNEE OF PAUL A. RUSSELL, APPELLANT,
v.
PROGRESSIVE NORTHEASTERN INSURANCE CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered October 22, 2009.

Comfort Supply, Inc. v Progressive Northeastern 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011

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

The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment.

In support of its motion, defendant submitted an affidavit of its litigation representative which was sufficient to establish that the denial of claim forms, which had 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 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted 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 equipment provided to plaintiff's assignor (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]). Contrary to plaintiff's assertion, the fact that defendant did not annex the underlying medical records which the peer reviewer considered in formulating his opinion did not render the peer review report inadmissible (see Neomy Med., P.C. v GEICO Ins. Co., 32 Misc 3d 137[A], 2011 NY Slip Op 51532[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]), but plaintiff failed to do so.

As plaintiff's remaining contentions are either unpreserved or lack merit (see e.g. Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed (see 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]).

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

Decision Date: December 19, 2011

20111219

© 1992-2011 VersusLaw Inc.



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