December 19, 2011

All Points Med. Supply, Inc. v Clarendon Ins. Co. (2011 NY Slip Op 52292(U))

Headnote

The main issue in this case was whether the defendant is entitled to summary judgment seeking the dismissal of the first through fourth causes of action in an action to recover assigned first-party no-fault benefits. The defendant submitted affirmed peer review reports which set forth the factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the supplies at issue. The defendant's showing that the supplies were not medically necessary was not rebutted by the plaintiff. Therefore, the court ruled in favor of the defendant and granted the branches of the defendant's motion for summary judgment seeking the dismissal of the first through fourth causes of action. As a result, the order of the Civil Court of the City of New York, Queens County denying the defendant's motion for summary judgment was reversed, and the branches of the defendant's motion for summary judgment seeking the dismissal of the first through fourth causes of action were granted.

Reported in New York Official Reports at All Points Med. Supply, Inc. v Clarendon Ins. Co. (2011 NY Slip Op 52292(U))

All Points Med. Supply, Inc. v Clarendon Ins. Co. (2011 NY Slip Op 52292(U)) [*1]

All Points Med. Supply, Inc. v Clarendon Ins. Co.

2011 NY Slip Op 52292(U) [34 Misc 3d 128(A)]

Decided on December 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1093 Q C.

All Points Medical Supply, Inc. as Assignee of YVETTE HERNANDEZ, Respondent,
against
Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 24, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied the branches of its motion for summary judgment seeking the dismissal of the first through fourth causes of action.

In support of its motion, defendant submitted, among other things, affirmed peer review reports which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branches of defendant’s motion for summary judgment seeking the dismissal of plaintiff’s first through fourth causes of action are 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 the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 19, 2011