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Baybenson Chiropractic, LLC As Assignee of Simeon Johnson v. Clarendon National Insurance

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


May 6, 2013

BAYBENSON CHIROPRACTIC, LLC AS ASSIGNEE OF SIMEON JOHNSON,
RESPONDENT
v.
CLARENDON NATIONAL INSURANCE,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 10, 2011.

Baybenson Chiropractic, LLC v Clarendon Natl. Ins.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

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

ORDERED that the order is reversed, with $30 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 which denied defendant's motion for summary judgment dismissing the complaint.

Defendant's moving papers established that defendant had timely denied the claims at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) based on a lack of medical necessity. In addition, defendant submitted a sworn peer review report and a sworn independent medical examination (IME) report, each of which set forth a factual basis and a medical rationale for the determination that there was no medical necessity for the chiropractic services at issue. In opposition to the motion, plaintiff submitted an affidavit by a chiropractor which failed to meaningfully refer to or rebut the conclusions of either the peer reviewer or of the chiropractor who had performed the IME (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]). Therefore, defendant's motion should have been granted (see 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]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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