New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
January 14, 2013
PARSONS MEDICAL SUPPLY, INC. AS ASSIGNEE OF ROGER NELSON,
PROGRESSIVE NORTHEASTERN INSURANCE CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 11, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]).
Parsons Med. Supply, Inc. v Progressive Northeastern 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The judgment, entered pursuant to the March 11, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (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]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant's chiropractor that there was a lack of medical necessity for the supplies provided (see e.g. 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]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).
In opposition to defendant's motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff's remaining contentions either lack merit or are improperly raised for the first time on appeal. Consequently, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint.
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: January 14, 2013
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