Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 June 19, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground,
among others, that the services provided were not medically necessary, and plaintiff cross-moved for summary judgment. Defendant appeals, as limited by its brief, from so much of the Civil Court’s order as denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the bills relating to plaintiff’s second, third, fifth, sixth and eighth causes of action on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue in the second, third, fifth and eighth causes of action were not medically necessary. Consequently, defendant established its prima facie entitlement to summary judgment with regard to these causes of action (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 & [*2]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]). However, defendant’s motion papers did not shift the burden with respect to plaintiff’s sixth cause of action since neither of the peer review reports submitted referred to the services set forth in plaintiff’s sixth cause of action.

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro’s affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, 265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]), and the Civil Court should not have considered any facts set forth in that affirmation (see Pisacreta, 265 AD2d 540). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010