Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50586(U))

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 19, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 19, 2012, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that plaintiff’s assignor’s (voluminous) medical file lacked “useful/supportive information” — without essaying to explain what medical records, if any, were missing from the file — was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2013