November 26, 2013

Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51995(U))

Headnote

The provider's doctor's affirmation failed to rebut the insurer's peer review on the medical necessity of the supplies. The Civil Court denied the insurer's summary judgment motion and limited trial to medical necessity under CPLR 3212 (g). The insurer's sworn peer review set out a factual basis and medical rationale for finding the supplies unnecessary. The opposing affirmation did not meaningfully address or rebut those conclusions under Pan Chiropractic, P.C. v Mercury Ins. Co. The provider also did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Praetorian Ins. Co. (2013 NY Slip Op 51995(U))

[*1]
Alev Med. Supply, Inc. v Praetorian Ins. Co.
2013 NY Slip Op 51995(U) [41 Misc 3d 139(A)]
Decided on November 26, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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


PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-252 Q C.
Alev Medical Supply, Inc. as Assignee of JAREA T. COOK, Respondent, —

against

Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 8, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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, the Civil Court denied defendant’s motion for summary judgment, finding that plaintiff had raised a triable issue of fact and stating that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

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 was no medical necessity for the medical supplies 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]). In view of the foregoing, and as [*2]plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is 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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013