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All Boro Psychological Services, P.C. As Assignee of Shirell Knight v. Progressive Northeastern Insurance Co

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


February 19, 2013

ALL BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF SHIRELL KNIGHT,
APPELLANT,
v.
PROGRESSIVE NORTHEASTERN INSURANCE CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 16, 2010, deemed from a judgment of the same court entered February 22, 2011 (see CPLR 5501 [c]).

All Boro Psychological Servs., P.C. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

The judgment, entered pursuant to the December 16, 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 on the ground that the services rendered lacked medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues, among other things, that it raised a triable issue of fact as to the medical necessity of the psychological testing at issue by submitting a letter of medical necessity and the prior trial testimony of a Dr. Franklin Porter. However, the letter of medical necessity did not meaningfully refer to, let alone rebut, the conclusions of defendant's psychologist (see 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]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and Dr. Porter's testimony has no relevance to the peer review report at issue in this case. While Dr. Porter testified generally, in an unrelated trial, that certain psychological tests have utility, the peer review report relied upon by defendant in this case concluded that they were not medically necessary under the factual circumstances presented by this case. Plaintiff's remaining contentions on appeal are without merit and/or unpreserved for appellate review.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 19, 2013

20130219

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