December 16, 2011

Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))

Headnote

The court considered the motion for summary judgment by the plaintiff and the cross motion for summary judgment by the defendant in this case involving a provider seeking to recover assigned first-party no-fault benefits. The main issue before the court was the medical necessity of the supplies provided to the plaintiff's assignor. The court found that the defendant had demonstrated that it had timely denied the plaintiff's claim and that the sole issue for trial was the medical necessity of the supplies provided. In support of its cross motion, the defendant submitted an affirmed peer review report which showed a lack of medical necessity for the medical supplies at issue. Plaintiff did not provide any rebuttal to defendant's showing. As a result, the court granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))

Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U)) [*1]

Alfa Med. Supplies v Eveready Ins. Co.

2011 NY Slip Op 52282(U) [34 Misc 3d 127(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-1693 K C.

Alfa Medical Supplies as Assignee of BETZAIDA OBLITAS, Respondent,
against
Eveready Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 27, 2010. 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, without 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. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed 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 medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted. [*2]

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011