SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 20, 2011. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the total sum of $3,988.58.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant denied plaintiff’s claims on the ground of “material misrepresentation” because plaintiff had billed for a heating pad which defendant had determined had not been provided to plaintiff’s assignor. Defendant moved for summary judgment dismissing the complaint, contending that, since one of plaintiff’s claim forms billed for an electric heating pad which had not been provided to plaintiff’s assignor, plaintiff was barred, as a result of this material misrepresentation, from receiving no-fault benefits for the electric heating pad as well as for the remaining supplies for which plaintiff sought to recover. Plaintiff opposed the motion. The Civil Court, by order entered April 20, 2011, granted defendant’s motion to the extent of dismissing so much of the [*2]complaint as sought to recover for the heating pad, on the ground that it had not been delivered to plaintiff’s assignor, but denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for the remaining supplies billed for, which amounted to $3,988.58. Defendant appeals from so much of the order as denied those branches of its motion.

Defendant failed to establish as a matter of law that the claim forms which are the subject of this appeal sought payment of assigned first-party no-fault benefits for medical supplies that had not actually been provided by plaintiff to its assignor. Defendant also failed to establish that the provider’s billing for a heating pad which had never been delivered to plaintiff’s assignor voided the automobile insurance policy underlying this action from the policy’s inception and that, therefore, defendant need not pay for any of the other medical supplies which may have been furnished to plaintiff’s assignor under this policy.

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered May 10, 2010. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees.

After plaintiff presented its prima facie case at the trial of this action by a provider to recover assigned first-party no-fault benefits, defendant offered no defense, but relied upon the record. The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).

Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held solely with respect to defendant’s defense of lack of medical necessity. Defendant’s expert witness identified her peer review report and conclusorily testified that the radiology services at issue were not medically necessary. Although the court allowed the peer review report into evidence for the limited purpose of showing that it was prepared by defendant’s expert witness, it did not consider the contents of the report. The court granted plaintiff’s motion for a directed verdict and awarded judgment to plaintiff, holding that defendant had not established a lack of medical necessity for the services at issue.

Since defendant’s expert’s testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., Misc 3d , 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. [*2]v Maryland Cas. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Additionally, a peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity (see A-Quality Med. Supply, Misc 3d , 2013 NY Slip Op 23088). Thus, the Civil Court’s determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

As we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

Civil Court of the City of New York, Kings County

068326/2011

ATTORNEYS FOR PLAINTIFF:

Ilona Finkelshteyn, Esq

2503 65th Street

Brooklyn, NY 11204

ATTORNEYS FOR DEFENDANT:

Law Offices of Spina, Korshin & Welden

170 Froehlich Farm Blvd.

Woodbury, NY 11797

Katherine A. Levine, J.

PapersNumbered

Notice of Motion and Affidavits Annexed………….. …………………………1

Notice of Cross-Motion and Affidavits Annexed.. ………………………….2

Answering Affidavits………………………………………………………………….. .

Replying Affidavits……………………………………………………………………..

Exhibits………………………………………………………………………………………..

Other: ………………………………………………………………………………………….

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

This case was submitted solely on the unanswered question of whether the No-Fault Regulations require a defendant insurance company to respond to a letter from a plaintiff medical provider objecting to an EUO request as being unreasonable.

Plaintiff LK Health Products, Inc. (“plaintiff” or “LK”), a medical equipment company, [*2]commenced this action to recover the sum of $2,779.63 for medical supplies it provided to its assignor. Defendant GEICO General Insurance Company (“defendant” or “GEICO”) cross moves for summary judgment based upon plaintiff’s failure to show up at an EUO. Defendant sent plaintiff two EUO requests which explained that GEICO’s investigation into plaintiff’s business practices raised questions as to the accuracy of its billing and coding practices, its calculations, and whether the items billed for were the actual items provided to the patients.

In response to the defendant’s EUO request, plaintiff sent a letter which referenced the assignor’s name, the date of service and the amount outstanding. It read: “Please acknowledge this as a formal objection to the EUO request. It is my belief that you do not have a reasonable basis for an EUO request as regulation 68 requires. If there is any kind of information that you need, please request it in the form of verification request. In response to your attached letter, please find out filing receipt and verification of true ownership.” Plaintiff sent a filing receipt and verification of true ownership in response to defendant’s EUO letter.

In its motion plaintiff argues that defendant lacked a specific objective justification for the requested EUO and s that once plaintiff objected to the EUO, the burden shifted to the defendant to respond why its EUO request was reasonable. Plaintiff cites to 11 NYCRR §65 – 3.2, entitled “Claim Practice Principles to be Followed by All Insurers,” which provides that insurers are to: “(e) Clearly inform the applicant of the insurer’s position regarding any disputed matter and (f) Respond promptly, when a response is indicated, to all communications from insureds, …” in support of its position.

Defendant counters that its EUOs were properly scheduled based upon the results of its special investigation into the plaintiff’s business practices. Since its initial EUO scheduling letter explained the need for the EUO, defendant argues that it did not have to respond to plaintiff’s objection letter. It also argues that plaintiff’s boilerplate and nonspecific objection to an EUO did not obviate plaintiff’s obligation to appear.

The Court finds plaintiff’s argument unavailing. First, 11 NYCRR 65-3.2 is a generic provision which applies to all claim practices by insurers. In contrast, the Insurance Department has specifically addressed the obligations of insurers regarding No-Fault EUOs. The Department found that 11 NYCRR 65-3.5(e) does not require an insurer to justify its EUO requests or include language setting forth the reasons for requiring the EUO in either its notices for the EUO or its denials based upon an EUO no show. Nor need it even file with the Insurance Department the standards it maintains for determining when EUOs will be requested. (See Office of General Counsel, NYS Ins Dept. Opinion dated 12/22/2006).

The Court first notes that plaintiff has no standing to even raise this argument since it did not request that defendant provide its reasons for seeking an EUO but rather issued an objection letter indicating that it refused to appear. Furthermore, since no justification for an EUO request is necessary, this Court rules that an insurer is not obligated to reply to a plaintiff letter refusing to appear at an EUO and requesting that a defendant justify its reason for the EUO. Here, [*3]defendant went beyond its obligation by providing its reasons for the EUO in its initial scheduling letter. Finally, to rule otherwise would sanction the parties’ sending countless letters to each other, which would violate the intent of the No-Fault Law which encourages the prompt resolution of no fault claims. See New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 NY3d 586, 589 (2011); All Boro Psychological Services, P.C. v. GEICO, 38 Misc 3d 268, 272 (Civ. Ct., Kings Co. 2012). The no-fault regulations were adopted by the Superintendent of Insurance in furtherance of these objectives. New York and Presbyterian Hosp., supra at 589 citing Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, (2007).

It is well established that a plaintiff may preserve its right to challenge the reasonableness of the EUO request at the litigation stage if it objects to a requested EUO at the time it receives the notice. Eagle Surgical Supply, Inc v. AIG Ins Co., 2012 NY Slip Op 51711(U), 36 Misc 3d 153(A)(App. Term, 2nd Dept. 2012); All Boro Psychological Services, P.C. v. State Farm Mutual Automobile Ins. Co., 2012 NY Slip Op 51346(U), 36 Misc 3d 135(A)(App. Term, 2nd Dept. 2012). Here, the Court finds that the plaintiff timely objected to the defendant’s EUO request in writing. However, the defendant provided a clear and unambiguous affidavit from its Special Investigative Unit (“SIU”) Manager which substantiated the need for the EUO based upon an investigation it commenced of plaintiff for improper management and billing operations. Therefore, the defendant was justified in requesting the EUO of the plaintiff.

Plaintiff’s failure to show up for an EUO constituted a violation of a condition precedent to coverage, which voided the contract ab initio. Accordingly, the defendant insurer is not obligated to pay the claim, regardless of whether it issued denials beyond the 30 day period. Neomy Medical, P.C. v. American Transit Ins. Co., 2011 NY Slip Op 50536(U), 31 Misc 3d 1208(A)(Civ. Ct., Kings Co. 2011). See Lender Medical Supply, Inc v. Hartford Ins. Co., 2012 NY Slip Op 50903(U), 35 Misc 3d 1226(A)(Civ. Ct., Kings Co 2012). Since the contract has been vitiated, defendant may deny all the claims retroactively to the date of loss. Id.

In light of the above, the plaintiff’s motion is denied, the defendant’s motion is granted and the case is dismissed with prejudice.

The foregoing shall constitute the Decision and Order of the Court.

Dated: May 9, 2013___________________________

Katherine A. LevineJudge, Civil Court

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered July 14, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

ORDERED that the order, insofar as appealed from, is modified, by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

On appeal, defendant argues that it established that so much of the complaint as sought to recover on the claim for $2,619.20 should have been dismissed based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations, which is a breach of a condition precedent to coverage. However, defendant concededly did not deny the claim on that ground. Therefore, defendant failed to establish its entitlement to summary judgment with respect to the $2,619.20 claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

In support of its cross motion for summary judgment, plaintiff failed to prove the fact and the amount of the loss sustained, by demonstrating that the claim form annexed to its cross motion was admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff failed to establish its prima facie case with respect to its $2,619.20 claim (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 16, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that defendant had established a timely and proper denial of the claim at issue on the ground of lack of medical necessity and that the sole remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supply at issue. Defendant’s showing that the supply at issue was not medically necessary was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise [*2]entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see 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]).

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), dated June 3, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that it lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f).

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claim based on plaintiff’s [*2]failure to appear, had been timely mailed (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]). Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed.

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered April 26, 2011, deemed from a judgment of the same court entered May 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2011 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,358.32.

ORDERED that the judgment is affirmed, with $25 costs.

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 and granted plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which defendant’s appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant argues on appeal that plaintiff did not establish its prima facie entitlement to summary judgment because it failed to prove that the claims had been mailed to defendant and it failed to lay a foundation for its claim forms pursuant to CPLR 4518. Contrary to defendant’s [*2]arguments, plaintiff satisfied both of these prongs of its prima facie case (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists 2006]).

Furthermore, the affidavit of defendant’s claims representative failed to establish that defendant had timely mailed its denial of claim forms (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]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defense that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and therefore failed to raise a triable issue of fact.

Accordingly, the judgment is affirmed.

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered March 30, 2011. The order, insofar as appealed from, upon, in effect, granting defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, adhered to the prior determination denying the cross motion.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 5, 2010, denied both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, finding that “the sole issue for trial is medical necessity.” Defendant appeals from so much of an order of the Civil Court entered March 30, 2011, as, in effect, upon granting defendant’s motion for leave to reargue its prior cross motion, adhered to the prior determination that defendant was not entitled to summary judgment.

Defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the [*2]medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was “more than adequate.” In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (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]). Consequently, defendant’s cross 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, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely mailed (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]) the denial of the claim form at issue, [*2]which denied the claim on the ground of lack of medical necessity. Moreover, defendant submitted a properly affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical equipment at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (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 cross 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, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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