New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
August 31, 2012
DR. TODD GOLDMAN, D.C., P.C. AS ASSIGNEE OF PAUL ZERAFA,
KEMPER CASUALTY INSURANCE COMPANY,
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.
Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and ALIOTTA, 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 Civil Court denying defendant's motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.
The affidavit submitted by defendant in support of its motion
established that defendant had timely denied plaintiff's claims (see
St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d
1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins.,
17 Misc 3d 16 [App Term, 2d
& 11th Jud Dists 2007]) on the ground of lack of medical necessity. In addition,
defendant submitted a sworn independent medical examination report which set forth
a factual basis and a medical rationale for the chiropractor's determination that there was
a lack of medical necessity for the services at issue. Since defendant's prima facie showing
was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the
complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A],
2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012
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