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Dr. Todd Goldman, D.C., P.C. As Assignee of Rose Saunders v. Kemper Casualty Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT,


June 28, 2012

DR. TODD GOLDMAN, D.C., P.C. AS ASSIGNEE OF ROSE SAUNDERS,
RESPONDENT,
v.
KEMPER CASUALTY INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 14, 2010.

Dr. Todd Goldman, D.C., P.C. v Kemper Cas. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012

2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ

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

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff's claims other than plaintiff's claim for $261.60 for services rendered on November 12, 2007 and plaintiff's claim for $33.70 for services rendered on September 5, 2008; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's claims had been timely denied for lack of medical necessity based upon an independent medical examination (IME) performed on March 22, 2008.

Defendant established that the claim denial forms annexed to its motion, which denied the claims at issue based upon a lack of medical necessity, had been timely mailed (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 a sworn March 22, 2008 IME report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for any chiropractic treatment rendered after March 22, 2008. Plaintiff did not rebut defendant's prima facie showing.

Accordingly, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims for services rendered after March 22, 2008 for which defendant established that it had timely denied the claims. However, as to plaintiff's claim for $261.60 for services rendered on November 12, 2007, defendant failed to establish a lack of medical necessity for those services, which were rendered before the March 22, 2008 IME. Finally, defendant's motion failed to address plaintiff's claim for $33.70 for services rendered on September 5, 2008. Thus, defendant failed to establish that it had timely denied that claim.

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff's claims other than plaintiff's claim for $261.60 for services rendered on November 12, 2007 and plaintiff's claim for $33.70 for services rendered on September 5, 2008.

Weston, J.P., Pesce and Aliotta, JJ., concur. Decision Date: June 28, 2012

20120628

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