Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 2, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion, defendant submitted, among other things, a sworn 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 chiropractic services rendered. In opposition to the motion, plaintiff submitted an affidavit by its chiropractor which was sufficient to demonstrate that there was an issue of fact as to the medical necessity of the services at issue (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 13, 2012