December 23, 2011

Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U))

Headnote

The relevant facts considered by the court in this case were that Biobalance Medical, P.C. was seeking to recover assigned first-party no-fault benefits from Clarendon National Insurance Company. Clarendon had timely denied Biobalance's claim on the ground of lack of medical necessity. The main issue decided by the court was whether defendant's motion for summary judgment dismissing plaintiff's third cause of action should be granted. The holding of the court was that defendant established its prima facie entitlement to summary judgment dismissing plaintiff's third cause of action, as the peer review report provided a factual basis and medical rationale for the determination of lack of medical necessity. In opposition, plaintiff failed to raise a triable issue of fact, as they did not proffer an affidavit from a healthcare practitioner that meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report. Therefore, the court reversed the Civil Court's order and granted defendant's motion for summary judgment dismissing plaintiff's third cause of action.

Reported in New York Official Reports at Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U))

Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U)) [*1]

Biobalance Med., P.C. v Clarendon Natl. Ins. Co.

2011 NY Slip Op 52378(U) [34 Misc 3d 134(A)]

Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 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
2010-2200 K C.

Biobalance Medical, P.C. as Assignee of JULIAN ALVAREZ, EDGAR ARROYO, FREDERICK BOOTHE, ANTON BOYKO, ELIGIO PEREZ and LILIARDO RIOS, Respondent,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing plaintiff’s third cause of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is 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 its motion for summary judgment dismissing plaintiff’s third cause of action.

In support of its motion for summary judgment, defendant established that it timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. [*2]As the affirmed peer review report annexed to defendant’s motion papers set forth a factual basis and medical rationale for the peer review doctor’s determination that there was a lack of medical necessity for the services at issue, defendant established its prima facie entitlement to summary judgment dismissing plaintiff’s third cause of action (see Delta Diagnostic Radiology, P.C., 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]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact, as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, 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, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court’s order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.

Steinhardt, J.P., Pesce and Weston JJ., concur.
Decision Date: December 23, 2011