Civil Court of the City of New York, Queens County

086674/10

The petitioner was represented by Jonathon H. Kaufman, Esq. of Serpe, Andree & Kaufman, 149 Main Street, Huntington NY. The respondent was represented by Stacey Gorny, Esq. of Lewis Johns Avallone Aviles, LLP, 425 Broad Hollow Road, suite 400, Melville, NY.

Genine D. Edwards, J.

Petitioner seeks to vacate an arbitration award rendered following mandatory arbitration

because the arbitrator allegedly disregarded applicable law. Respondent opposes the application

and contends that the arbitrator’s decision was neither arbitrary nor capricious.

William Salas, petitioner’s insured, drove a loaner vehicle, while his own vehicle was being repaired at a car dealership. Salas’ vehicle was insured by petitioner and the loaner vehicle was insured by respondent. While driving the loaner vehicle, Salas struck a pedestrian. Petitioner paid no-fault benefits to the pedestrian. Thereafter, it submitted a claim to arbitration and sought reimbursement from respondent for expenses and medical benefits paid to the pedestrian.

Salas signed a loaner/rental agreement before he took control of the loaner vehicle. [*2]Paragraph 6 of the agreement stated, in pertinent part:

You are responsible for all damage or loss You cause to others. You agree to provide auto liability, collision and comprehensive insurance covering You, Us and the Vehicle. Your personal auto insurance coverage is primary (emphasis added). If you have no auto liability insurance in effect on the date of loss, or if We are required by law to provide liability insurance, We provide auto liability insurance (the Policy”) that is secondary to any other valid and collectible insurance, whether primary, secondary, excess or contingent . . . .”

Notice of Petition, Exhibit C. Based upon paragraph 6 of the agreement, the arbitrator determined that petitioner failed to prove its prima facie case. Thus, petitioner was deemed primarily responsible for no-fault payments and was not entitled to reimbursement for expenses and medical benefits paid to the pedestrian.

In the instant application, petitioner equates a loaner vehicle to a rental vehicle and asserts that as between a no-fault insurer of a rental vehicle and a no-fault insurer of a non-owner renter, the primary source of coverage for no-fault benefits is the no-fault insurer of the rental vehicle. In opposition, respondent contends that the award should stand because the arbitrator’s decision was neither arbitrary nor capricious. It contends that the arbitrator based its decision upon credible evidence, namely paragraph 6 of the loaner/rental agreement.

“Courts are reluctant to disturb the decisions of arbitrators lest the value of this method of resolving controversies be undermined.” Matter of Goldfinger v. Lisker, 68 NY2d 225, 508 NYS2d 159 (1986). Where arbitration is pursuant to a voluntary agreement of the parties, the award will be upheld unless it violates strong public policy, is totally irrational, or exceeds a specifically enumerated limitation of the arbitrator’s power. See Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 652 NYS2d 584 (1996) (Where arbitration is pursuant to voluntary agreement of parties, the arbitrator’s determination on issues of law, such as application of statute of limitations as well as on issues of fact, is conclusive, in absence of proof of fraud, corruption, or other misconduct.); Teamsters Local 814 Welfare, Pension and Annuity Funds v. County Van Lines, Inc.,56 AD3d 567, 867 NYS2d 190 (2 Dept. 2008). In the case of mandatory arbitration, as is the case here, due process imposes closer judicial scrutiny on the arbitrator’s determination. RDK Medical P.C. v. General Assur. Co., 8 Misc 3d 1025(A), 806 NYS2d 448 (Civ. Ct. Kings County 2005). Therefore, “[a]n arbitration award in a mandatory arbitration proceeding will be upheld if it is supported by the evidence and is not arbitrary and capricious.” State Farm Mut. Auto. Ins. Co. v. City of Yonkers, 21 AD3d 1110, 801 NYS2d 624 (2d Dept. 2005). See also Kemper Ins. Co. v. Westport Ins. Co., 9 AD3d 431, 779 NYS2d 788 (2d Dept. 2004); State Farm Mut. Auto. Ins. Co. v. American Transit Ins. Co., 26 Misc 3d 127(A), 906 NYS2d 783 (2d, 11th & 13th Jud. Dists. 2009). This is a priority of payment claim. In order to determine the priority of payment, all relevant policies should be reviewed and considered. Petitioner never produced its policy. Thus, [*3]the arbitrator properly relied upon the respondent’s policy to determine that petitioner was primarily responsible to make no-fault payments to the pedestrian. In addition, this Court is unpersuaded by petitioner’s assertion that a loaner vehicle is akin to a rental vehicle and thus, respondent is primary for no-fault coverage. See M.N. Dental Diagnostics, P.C. v. Government Employees Ins. Co., 24 Misc 3d 43, 884 NYS2d 549 (App. Term. 1st Dept. 2009). It has been held that a loaner vehicle is a “temporary substitute vehicle”, which ordinarily is covered under the insured’s policy. See Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 AD2d 794, 759 NYS2d 734 (2d Dept. 2003); ELRAC, Inc. v. Mehlinger, 258 AD2d 500, 684 NYS2d 625 (2d Dept. 1999).

The application to vacate the arbitration award is denied. Thus, the award is confirmed.

This constitutes the decision and order of the Court.

Date: December 6, 2010 _____________________________

Genine D. Edwards

Judge of Civil Court [*4]

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff-provider commenced this action to recover assigned first-party no-fault benefits for medical supplies provided to its assignor. Defendant-insurer moved for summary judgment dismissing the complaint as premature on the ground that plaintiff failed to comply with defendant’s verification requests. In support of that motion, defendant submitted the affidavit of its claims examiner, in which he stated that (1) defendant received plaintiff’s claim on August 13, 2007; (2) defendant mailed verification requests on August 14, 2007, and follow-up requests on August 28, 2007 and September 28, 2007; and (3) plaintiff failed to respond to any of these requests. Civil Court denied the motion on the ground that the verification requests were issued “less than thirty (30) days apart in contravention of the regulations, thereby rendering them improper.” We reverse.
It is well settled that the 30-day period within which an insurer must pay or deny the claim is tolled until it receives the relevant verification requested (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Plaintiff does not dispute that defendant mailed the verification requests, as well as the follow-up requests, and that plaintiff failed to respond. Although defendant’s September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant’s “improper” follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd., supra), does [*2]not vitiate the validity of the September 28, 2007 follow-up request. “[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests” (id. at 865). Accordingly, since plaintiff did not respond to defendant’s verification requests, its action is premature, and defendant’s motion for summary judgment dismissing the complaint as premature should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 03, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 29, 2009. The order denied defendant’s motion for consolidation, and, upon consolidation, for other relief.

ORDERED that the order is affirmed, with $10 costs.

In this Civil Court, Kings County, action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate 82 other cases then pending in the Civil Court, Kings County, all of which were commenced by the same provider against defendant or its various property casualty affiliates and subsidiaries, with this case and, upon consolidation, for other relief. The court denied defendant’s motion, and this appeal by defendant ensued.

In opposition to the motion, plaintiff established that on November 5, 2007, prior to the date that defendant brought the motion that gave rise to the instant appeal, the Civil Court had issued an order granting plaintiff summary judgment in this action and awarding it the sum of $1,078.32, together with applicable statutory interest, attorney’s fees, costs and disbursements. In view of the foregoing, there has been a final adjudication on the merits in this action (see QFI, Inc. v Shirley, 60 AD3d 656 [2009]; Methal v City of New York, 50 AD3d 654 [2008]). Thus, there was no longer a pending action with which other actions could be consolidated pursuant to CPLR 602 (a) (see Fischer v RWSP Realty, LLC, 53 AD3d 595 [2008]). Accordingly, the order denying defendant’s motion for consolidation is affirmed. We pass on no other issue.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 03, 2010

[*1]

Supreme Court, Appellate Term, Second Department, December 3, 2010

APPEARANCES OF COUNSEL

Gullo & Associates, LLP, Brooklyn (Cristina Carollo of counsel), for appellant. Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**30 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, so much of the order dated August 8, 2006 as provided that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

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. By order dated August 8, 2006, the Civil Court denied both the motion and the cross motion, found that the only triable issue of fact was whether the fees charged were excessive and stated that the trial was limited to that issue, citing CPLR 3212 (g).

In accordance with the August 8, 2006 order, the nonjury trial began with defendant’s presentation of its defense. Defendant’s attorney sought to present evidence to demonstrate, in effect, that plaintiff was not eligible for reimbursement under the No-Fault Law because plaintiff’s sole shareholder was not licensed or certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 [*2]Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela,{**30 Misc 3d at 44} 4 NY3d 313 [2005]). The Civil Court would not allow defendant to present this evidence because, the court found, it was barred by the August 8, 2006 order, which limited the issue for trial to the excessiveness of the fee schedule. When defendant failed to proffer any evidence as to its fee schedule defense, plaintiff moved for a directed verdict and the court granted plaintiff’s motion. Subsequently, a judgment was entered in favor of plaintiff, and the instant appeal by defendant ensued.

On appeal, defendant argues, in effect, that the August 8, 2006 order improperly barred defendant from asserting its defense that plaintiff was not eligible for reimbursement under the No-Fault Law pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12). Defendant also argues, in effect, that to the extent said order could be interpreted to read that plaintiff did not have to prove its case at trial, the order was improper.

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to “ascertain what facts are not in dispute or are incontrovertible” (CPLR 3212 [g]). Under that circumstance, the court is directed to “make an order specifying such facts,” which will then “be deemed established for all purposes in the action.” In addition, the court is permitted to “make any order as may aid in the disposition of the action.”

Upon a review of the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted “proof of the fact and amount of loss sustained” to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff’s motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).{**30 Misc 3d at 45}

Accordingly, the judgment is reversed, so much of the order dated August 8, 2006 as stated that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

Weston, J.P., Golia and Rios, JJ., concur.

—[*1] Randall S. Ferguson, Roslyn Heights, N.Y., for appellant.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, Taylor Raynor appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered January 28, 2010, which directed a hearing on all issues raised in the petition and on her cross motion to dismiss the proceeding as time-barred.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with one bill of costs to the appellant payable by the petitioner, and the cross motion to dismiss the proceeding as time-barred is granted.

The appellant alleged that she was injured as a result of an accident on May 15, 2009, caused by an uninsured vehicle. On June 12, 2009, the appellant’s attorney sent her insurer, the petitioner, Allstate Insurance Company (hereinafter Allstate), a certified letter, return receipt requested, claiming no-fault benefits, uninsured motorist benefits, and supplemental insurance benefits. The letter contained a notice of intention to arbitrate, and stated that unless Allstate applied to stay arbitration within 20 days after receipt of the notice, Allstate would thereafter be precluded from objecting, inter alia, that a valid agreement to arbitrate was not made or complied with. The appellant’s attorney sent Allstate an American Arbitration Association “request for arbitration” form dated November 5, 2009. On November 20, 2009, Allstate commenced this proceeding pursuant to CPLR article 75 to stay arbitration on the ground that the offending vehicle was insured on the date of the accident.

The Supreme Court should have granted the appellant’s cross motion to dismiss the proceeding as time-barred, as the proceeding was not commenced within 20 days of the June 12, 2009, notice of intention to arbitrate (see CPLR 7503 [c]; Matter of Liberty Mut. Ins. Co. v Zacharoudis, 65 AD3d 1353, 1354 [2009]; Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477, 478 [2006]; Matter of CNA [Pough], 99 AD2d 510 [1984]). Florio, J.P., Belen, Lott and Austin, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Epstein, Frankini & Grammatico, Woodbury, N.Y. (Frank J. Marotta of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered April 6, 2010, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile benefits, insurance companies are required to either pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its claim for benefits since the evidence demonstrates that the defendant made a partial payment and a partial denial of the claim within 30 days after receipt thereof (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Furthermore, under the circumstances of this case, the minor factual discrepancy contained in the defendant’s denial of claim form did not invalidate the denial. In addition, the denial was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004], citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]; cf. New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the defendant’s papers in opposition to the motion (see Moore v Stasi, 62 AD3d 764 [2009]; Marshak v Migliore, 60 AD3d 647 [2009]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.

—[*1] Hession Bekoff Cooper & LoPiccolo, LLP, Garden City (Jonathan M. Cader of counsel), and Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Todd Fass of counsel), for appellants. Cadwalader, Wickersham & Taft LLP, New York (William J. Natbony of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 26, 2009, which denied the motion by defendants Belt Parkway Imaging, P.C., Diagnostic Imaging, P.C., Metroscan Imaging, P.C., Parkway MRI, P.C. (the PC defendants) and Herbert Rabiner, M.D., for partial summary judgment, unanimously affirmed, without costs.

“A provider of health care services is not eligible for reimbursement under section 5102(a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). Pursuant to this regulation, the Court of Appeals held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319, 321 [2005]). Mallela was decided on March 29, 2005. The Legislature subsequently enacted Insurance Law § 5109, which became effective on August 2, 2005.

There is no indication in section 5109 that the statute overrules Mallela. Nor is there any such indication in its legislative history, which “must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with” (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]).

Section 5109 (a) states, “The superintendent, in consultation with the commissioner of health and the commissioner of education, shall by regulation, promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services as specified in” Insurance Law § 5102 (a) (1). However, the Superintendent of Insurance has issued no regulations pursuant to section 5109 (a). Thus, if—as defendants contend—only the Superintendent can take action against fraudulently incorporated health care providers, then no one can take such action. In light of the [*2]fact that “[t]he purpose of the regulations of which [11 NYCRR] 65-3.16 (a) (12) is a part was to combat fraud” (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, 409 [2006]), this would be an absurd result, and we reject it (McKinneys Cons Laws of NY, Book 1, Statutes § 145).

Defendants’ contention that plaintiffs fail to state a cause of action for unjust enrichment because they have not alleged that the services rendered by the PC defendants were medically unnecessary is without merit. Paragraph 1 of the second amended complaint alleges that “numerous unnecessary referrals were made subjecting many patients to unnecessary testing and/or radiation.” Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated July 9, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of a motion by plaintiff St. Vincent’s Hospital & Medical Center seeking summary judgment upon the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff St. Vincent’s Hospital & Medical Center (SVHMC) moved for summary judgment upon the first and second causes of action, and defendant cross-moved for summary judgment dismissing those causes of action on the ground that they were premature since SVHMC had failed to fully comply with defendant’s verification requests. The District Court granted SVHMC’s motion for summary judgment upon the first and second causes of action, and denied defendant’s cross motion, finding that defendant had failed to establish the mailing of its initial and follow-up verification requests. This appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant’s claims examiner was sufficient to establish that the initial and follow-up verification requests were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). However, defendant’s contention that SVHMC failed to provide requested verification lacks merit. Defendant’s verification requests sought copies of NF-5 forms signed by SVHMC’s assignors. However, the only [*2]portions of an NF-5 form which may bear the signature of an eligible injured person are the portions which authorize the release of health service or treatment information in accordance with the No-Fault Law and which either assign no-fault benefits to a provider or authorize the provider to receive payments directly from the insurer. As defendant was already in possession, prior to its verification requests, of the subject NF-5 forms, which each bore notations that the assignor’s signature was “on file,” defendant’s verification requests, in effect, sought a copy of the document(s) “on file” which had been signed by the assignors. Since SVHMC established that it had, in response to the verification requests, provided defendant with copies of the authorizations to release information and the assignments executed by the assignors, SVHMC established that it had complied with those requests. While defendant’s attorney asserted that defendant had never received the signed assignment of benefits forms, defendant’s attorney’s affirmation was without probative value as defendant’s attorney lacked personal knowledge of same (see Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001 [2009]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]).

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

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

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 moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. The District Court denied defendant’s motion, finding that defendant’s peer reviewer failed to set forth a sufficient medical rationale and factual basis for his conclusion that the services performed were not medically necessary, and, upon a search of the record, granted summary judgment to plaintiff. The instant appeal by defendant ensued.

In support of its motion, defendant submitted an affidavit of its no-fault litigation examiner, which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affidavit of defendant’s chiropractor and his peer review report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

In opposition to defendant’s motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Speciality Surgical Servs. v [*2]Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 12, 2009. The order denied defendant’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The District Court denied the motion, stating that although defendant had timely denied plaintiff’s claims, the peer review report upon which the denials were based was insufficient. The instant appeal by defendant ensued.

In support of its motion, defendant submitted affidavits of an employee of its claims division which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]).

Since defendant made a prima facie showing that the services at issue lacked medical necessity, the burden shifted to plaintiff to rebut defendant’s showing. As plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Speciality Surgical [*2]Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010