Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51859(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, Kings County (Peter Paul Sweeney, J.), entered September 30, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking to dismiss the first, second, third, fourth, fifth, eighth and ninth 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 appeals from the denial of its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant’s litigation examiner in support of defendant’s cross motion was sufficient to establish that defendant had timely denied each of the claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the claims at issue in the first through fifth causes of action, which were denied on the ground of lack of medical necessity, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for those services. With respect to the claims at issue in the eighth and ninth causes of action, defendant submitted affirmed peer review reports which similarly provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for those services. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant [*2]was entitled to summary judgment dismissing causes of action one through five, eight
and nine (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]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Contrary to defendant’s contention on appeal, the claim at issue in the sixth cause of action was not denied based upon medical necessity. Since defendant failed
to demonstrate that the medical necessity defense was preserved as to this claim, and further failed to establish the defense actually set forth in the denial of claim form, the branch of defendant’s cross motion seeking the dismissal of this cause of action was properly denied. Furthermore, defendant did not proffer sufficient evidence to warrant the dismissal of the claim underlying the seventh cause of action, for an office visit. While defendant asserts that its partial payment was made at the proper, although reduced, rate, defendant failed to substantiate this assertion (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking to dismiss the first, second, third, fourth, fifth, eighth and ninth causes of action are granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011