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 (Genine D. Edwards, J.), entered December 14, 2010. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. [*2]

The affidavit submitted by defendant in support of its motion established that defendant had timely denied plaintiff’s claims (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]) on the ground of lack of medical necessity. In addition, defendant submitted a sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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]).

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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, Queens County (Rudolph E. Greco, Jr., J.), entered December 17, 2010. The judgment, entered pursuant to so much of an order of the same court dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action, awarded plaintiff the principal sum of $3,519.08.

ORDERED that the judgment is reversed, without costs, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment of the Civil Court in favor of plaintiff in the principal sum of $3,519.08, entered pursuant to so much of an order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action.

In opposition to plaintiff’s motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations [*2](IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (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]). Defendant also submitted affirmations from the doctor who was to perform the IMEs which established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claim specialist demonstrated that the denial of claim forms, which denied plaintiff’s claims comprising the fifth through tenth causes of action based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), defendant raised a triable issue of fact and the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action should have been denied.

Accordingly, the judgment is reversed, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Reginald A. Boddie, J.), entered August 4, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument regarding several of defendant’s denials, the denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying plaintiff’s bills on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and [*2]that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

Plaintiff’s remaining argument on appeal is that defendant’s cross motion should have been denied because defendant, without explanation, paid some of the claims at issue at the rate for acupuncture services performed by a medical doctor and paid the rest of the claims at the rate for acupuncture services performed by a chiropractor. This argument lacks merit. This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant was therefore entitled to an award of summary judgment dismissing so much of the complaint as sought to recover upon the claims that had been reimbursed at that rate. As the remaining claims had been paid based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, there is no reason to disturb the portion of the order that granted defendant summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon those claims (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Maureen A. Healy, J.), entered November 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered November 15, 2010 as granted the branches of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered November 15, 2010 as granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

Plaintiff brought this suit to recover upon three claims which defendant had denied based [*2]upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). Contrary to plaintiff’s argument on appeal, defendant established the mailing of the IME scheduling letters, by submitting an affidavit by an employee of the entity which had sent the letters, which affidavit sufficiently demonstrated that the IME scheduling letters had been mailed in accordance with that entity’s standard office practices and procedures (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]). Plaintiff’s argument that the assignor was not required to respond to those IME requests because they came from a third party lacks merit, as the letters “clearly apprised the assignor” that they “were being sent on defendant’s behalf” (Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]). As plaintiff raises no other argument with respect to its claim for $171.36, for dates of service September 3 and 4, 2008, the branch of defendant’s motion seeking summary judgment dismissing this claim was properly granted.

However, defendant was not entitled to summary judgment dismissing plaintiff’s claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, because, according to the proof submitted by defendant in support of its motion, the first IME had not been scheduled to be held within 30 days of defendant’s receipt of those claims, as required by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d).

Accordingly, the judgment is reversed, so much of the order entered November 15, 2010 as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant’s motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 31, 2012

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 April 30, 2010, deemed from a judgment of the same court entered August 23, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 30, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered April 30, 2010 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v [*2]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]), which denied plaintiff’s claim on the ground of lack of medical necessity.

As to the $194.58 billed for a diagnostic interview (procedure code 90801), we find that there is an issue of fact and that, therefore, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $194.58 for procedure code 90801 should have been denied.

As to the remaining three services at issue, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for these
services. Since defendant’s prima facie showing as to these three services was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover for these services (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]). Plaintiff’s remaining contentions on appeal as to these services lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, we leave undisturbed so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Accordingly, the judgment is reversed, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon plaintiff’s claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 April 26, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claim on the ground of lack of medical necessity. In addition, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 April 26, 2010, deemed from a judgment of the same court entered July 28, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claim on the ground of lack of medical necessity. In addition, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Dawn Jimenez Salta, J.), entered March 9, 2010, deemed from a judgment of the same court entered August 10, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the 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]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted a [*2]sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 28, 2011, as denied its cross motion for a protective order and granted defendant’s motion to compel plaintiff to produce its principal for deposition.

Per Curiam.

Order (Fernando Tapia, J.), entered February 28, 2011, insofar as appealed from, reversed, with $10 costs, defendant’s motion to compel plaintiff to produce its principal for deposition denied and plaintiff’s cross motion for a protective order granted.

The defendant-insurer’s notice of deposition—pertaining to its defense of provider fraud based on fraudulent billing practices—was palpably improper (see Dhue v Midence, 1 AD3d 279 [2003]), since defendant is precluded from raising this defense due to its failure to timely deny plaintiff’s no-fault first-party claim within the 30-day statutory period (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]). This is so irrespective of defendant’s claim that the fraudulent billing was part of a widespread scheme to defraud insurers (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 285 [2007], affd 10 NY3d 556 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012

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 April 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to plaintiff’s arguments on appeal, the affidavit submitted by defendant’s litigation examiner was sufficient to establish that defendant had timely denied the claims (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]). In addition, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. As plaintiff’s remaining contentions lack merit, defendant was [*2]entitled to summary judgment dismissing the complaint (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]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 27, 2012