SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 17, 2012
ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. DOING BUSINESS AS ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY
AS ASSIGNEE OF MARLENE ESKANAZY,
TRI STATE CONSUMER INSURANCE COMPANY,
Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 15, 2010.
Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co.
Appellate Term, Second Department
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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2012
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.
Plaintiff concedes that defendant timely mailed the denial of claim
forms, which denied the claims on the ground of lack of medical
necessity as well as on the alternative ground that the amounts billed
for were in excess of the fee schedules. The record establishes that
the affirmed peer review report submitted in support of defendant's
motion set forth a sufficient factual basis and medical rationale to
demonstrate a lack of medical necessity for the services rendered (see
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc
3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; 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]). As a result, the burden shifted to plaintiff to rebut defendant's showing.
Since plaintiff, in opposition to defendant's motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52061[U] [App Term, 9th & 10th Jud Dists 2010]; 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 Iannaccci, JJ., concur.
Decision Date: January 17, 2012
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