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Elmont Open Mri & Diagnostic Radiology, P.C. Doing Business As v. Tri-State Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 24, 2012

ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. DOING BUSINESS AS
ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY AS ASSIGNEE OF JOANNE CUNNINGHAM,
RESPONDENT,
v.
TRI-STATE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated August 10, 2010.

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri-State Ins. Co.

Decided on January 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., NICOLAI 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.

The affidavits proffered by defendant in support of its motion for summary judgment were sufficient to demonstrate that defendant had timely denied the claims (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) on the ground of lack of medical necessity. Defendant also submitted, among other things, a peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Contrary to the determination of the District Court, defendant did not need to annex the medical records examined by the peer review doctor (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; 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]). Consequently, defendant established its prima facie entitlement to summary judgment (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]; 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]).

As plaintiff failed to rebut defendant's prima facie showing, defendant's motion for summary judgment dismissing the complaint is granted (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]).

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

Decision Date: January 24, 2012

20120124

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