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Hilltop Medical Diagnostic & Treatment Center As Assignee of Frantz Guillame v. Clarendon National Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

HILLTOP MEDICAL DIAGNOSTIC & TREATMENT CENTER AS ASSIGNEE OF FRANTZ GUILLAME,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the District Court of Nassau County, Second District (Michael A. Ciaffa, J.), dated July 7, 2010.

Hilltop Med. Diagnostic & Treatment Ctr. v Clarendon Natl. Ins. Co.

Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

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 denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claim on the ground of lack of medical necessity (see Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affirmed report of defendant's peer reviewer set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]), so as to shift the burden to plaintiff to rebut defendant's prima facie showing.

In opposition to defendant's motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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 is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: December 23, 2011

20111223

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