December 28, 2017

Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp. (2017 NY Slip Op 51951(U))

Headnote

The provider's chiropractor raised a triable issue of medical necessity by sufficiently rebutting the insurer's peer review report. The provider appealed from an order of District Court, Suffolk County, granting summary judgment dismissing its action for assigned no-fault benefits. The insurer's sworn peer review supplied a factual basis and medical rationale for finding the services unnecessary. In opposition, an affidavit from a chiropractor who performed the services meaningfully addressed the peer review and sufficiently rebutted its conclusions. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.

Reported in New York Official Reports at Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp. (2017 NY Slip Op 51951(U))

[*1]
Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp.
2017 NY Slip Op 51951(U) [58 Misc 3d 145(A)]
Decided on December 28, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2016-744 S C

Excel Surgery Center, L.L.C., as Assignee of Sylvester Leemow, Appellant,

against

Hertz Claim Management Corp., Respondent.


Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Rubin, Fiorella & Friedman, LLP (Kevin J. Davis, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 23, 2016. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary.

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there had been a lack of medical necessity for the services at issue (see American Chiropractic Care, P.C. v Praetorian Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50346[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). However, in opposition to the motion, plaintiff submitted an affidavit by one of the chiropractors who had performed the services at issue, which, as plaintiff argues on appeal, “meaningfully referred to defendant’s peer review report and sufficiently rebutted the conclusions set forth therein” (Vinings Spinal Diagnostic, P.C. v Geico Gen. Ins. Co., 29 Misc 3d 132[A], [*2]2010 NY Slip Op 51897[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; see also Westcan Chiropractic, P.C. v Hertz Claim Mgt.,48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]) and, thus, was sufficient to raise a triable issue of fact as to medical necessity.

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

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 28, 2017

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