November 26, 2013

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

Headnote

The court considered the denial of the defendant's motion for summary judgment in a case where a provider sought to recover assigned first-party no-fault benefits. The only issue for trial was the medical necessity of the supplies at issue. The main issue before the court was whether there was a triable issue of fact regarding the medical necessity of the supplies. The court held that the defendant's motion for summary judgment dismissing the complaint should be granted, as the plaintiff failed to meaningfully rebut the conclusions set forth in the peer review report submitted by the defendant. Therefore, the defendant was entitled to judgment, and the court reversed the order of the Civil Court and granted the defendant'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))

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This opinion is uncorrected and will not be published in the printed Official Reports.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