August 8, 2014

B & Y Surgical Supplies, Inc. v American Tr. Ins. Co. (2014 NY Slip Op 51255(U))

Headnote

The court considered the issue of a provider seeking to recover assigned first-party no-fault benefits and whether there was a lack of medical necessity for the supplies at issue. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff's motion, made findings in plaintiff's favor, and held that the only remaining issue for trial was medical necessity. Defendant submitted an affirmed peer review report showing a lack of medical necessity for the supplies, which was unrebutted by plaintiff. The Appellate Term reversed the lower court's decision, vacated the findings in plaintiff's favor, and granted defendant's motion for summary judgment dismissing the complaint, based on the lack of medical necessity for the supplies at issue.

Reported in New York Official Reports at B & Y Surgical Supplies, Inc. v American Tr. Ins. Co. (2014 NY Slip Op 51255(U))

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

B & Y Surgical Supplies, Inc. as Assignee of KAROLINA PELICHOWSKA, Respondent,
against
American Transit Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 24, 2010. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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 on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity and the workers’ compensation fee schedule. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and 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]).

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

Decision Date: August 08, 2014