March 17, 2016

Alleviation Med. Servs., P.C. v Truck Ins. Exch. (2016 NY Slip Op 50382(U))

Headnote

The court considered the timely mailing of a denial of claim form by the defendant, which denied the claim on the grounds of lack of medical necessity. The defendant also submitted an affirmed peer review that provided a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services at issue. In opposition, the plaintiff submitted an affidavit from a doctor that failed to sufficiently rebut the conclusions set forth in the peer review report. The main issue decided was whether the defendant sufficiently established the lack of medical necessity for the services at issue, and the court held that the defendant did establish its entitlement to summary judgment dismissing the complaint. Therefore, the order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Truck Ins. Exch. (2016 NY Slip Op 50382(U))

Alleviation Med. Servs., P.C. v Truck Ins. Exch. (2016 NY Slip Op 50382(U)) [*1]

Alleviation Med. Servs., P.C. v Truck Ins. Exch.

2016 NY Slip Op 50382(U) [51 Misc 3d 129(A)]

Decided on March 17, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1372 Q C

Alleviation Medical Services, P.C. as Assignee of JAMES WHITE, Appellant,
against
Truck Insurance Exchange, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 21, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In support of its motion, defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Defendant further submitted an affirmed peer review which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently 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, 2nd Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant established its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 17, 2016