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Brownsville Advance Medical, P.C. As Assignee of Rhonda Francis Munro v. Kemper Independence Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


August 7, 2012

BROWNSVILLE ADVANCE MEDICAL, P.C. AS ASSIGNEE OF RHONDA FRANCIS MUNRO,
RESPONDENT, --
v.
KEMPER INDEPENDENCE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 7, 2010.

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co.

Decided on August 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: 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 of the District Court denying defendant's motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim form, which denied plaintiff's claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; All County, LLC v Unitrin Advantage Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50621[U] [App Term, 9th & 10th Jud Dists 2011]). In addition, annexed to defendant's motion papers was an affirmed independent medical examination report that set forth a sufficient factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services provided (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]), which shifted the burden to plaintiff to rebut defendant's prima facie showing. In opposition to the motion, plaintiff failed to submit an affidavit or affirmation from a medical professional (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]; Total Equip., LLC, 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U]).

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: August 07, 2012

20120807

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