August 7, 2012

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))

Headnote

The relevant facts the court considered were that an insurance company was denying claims for first-party no-fault benefits on the grounds of lack of medical necessity, and the provider was seeking to recover the assigned benefits. The main issue decided was whether the denial of claim form had been timely mailed and whether the affirmed independent medical examination report provided a sufficient factual basis and medical rationale for the doctor's determination of lack of medical necessity. The holding of the court was that the insurance company had sufficiently established the timely mailing of the denial of claim form and provided a report that shifted the burden to the provider to rebut the insurance company's prima facie showing. Since the provider failed to submit an affidavit or affirmation from a medical professional, the court granted the insurance company's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U)) [*1]

Brownsville Advance Med., P.C. v Kemper Independence Ins. Co.

2012 NY Slip Op 51629(U) [36 Misc 3d 146(A)]

Decided on August 7, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2011-442 N C.

Brownsville Advance Medical, P.C. as Assignee of RHONDA FRANCIS MUNRO, Respondent, —
against
Kemper Independence Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 7, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court denying defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim form, which denied plaintiff’s claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; All County, LLC v Unitrin Advantage Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50621[U] [App Term, 9th & 10th Jud Dists 2011]). In addition, annexed to defendant’s motion papers was an affirmed independent medical examination report that set forth a sufficient [*2]factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services provided (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), which shifted the burden to plaintiff to rebut defendant’s prima facie showing. In opposition to the motion, plaintiff failed to submit an affidavit or affirmation from a medical professional (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]; Total Equip., LLC, 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: August 07, 2012