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Northshore Chiropractic Diagnostics, P.C. As Assignee of Marcia Cano v. Praetorian Insurance Company

August 23, 2012

NORTHSHORE CHIROPRACTIC DIAGNOSTICS, P.C. AS ASSIGNEE OF MARCIA CANO,
RESPONDENT,
v.
PRAETORIAN INSURANCE COMPANY,
APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered August 13, 2010.

Northshore Chiropractic Diagnostics, P.C. v Praetorian 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ

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

ORDERED that 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 denying defendant's motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. In both the Civil Court and on appeal, plaintiff has conceded the timeliness of defendant's denials; accordingly, the only issue on appeal is whether the services provided were medically necessary.

In support of its motion, defendant submitted two affirmed peer review reports 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. However, in opposition, plaintiff submitted an affidavit from a doctor which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 23, 2012

20120823

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