February 16, 2012

Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50226(U))

Headnote

The court considered the defendant insurer's motion for summary judgment dismissing the complaint, which was denied by the Civil Court of the City of New York, Bronx County. The main issue decided was whether the defendant insurer was entitled to judgment as a matter of law, based on the chiropractor's sworn peer review report stating that the diagnostic testing giving rise to the plaintiff's no-fault claim lacked medical necessity. The court held that the defendant insurer made a prima facie showing of entitlement to judgment as a matter of law, and that the plaintiff failed to raise a triable issue of fact in opposition. Therefore, the court reversed the order, granted the defendant insurer's motion, and dismissed the complaint, with costs to the defendant.

Reported in New York Official Reports at Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50226(U))

Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50226(U)) [*1]

Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co.

2012 NY Slip Op 50226(U) [34 Misc 3d 148(A)]

Decided on February 16, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 29, 2012; it will not be published in the printed Official Reports.

Decided on February 16, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570004/11.

Darlington Medical Diagnostics, P.C. a/a/o Belgrave Kirk, Plaintiff-Respondent.

against

Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered August 31, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered August 31, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, a chiropractor’s sworn peer review report, setting forth a factual basis and medical rationale for his stated conclusion that the diagnostic testing giving rise to plaintiff’s no-fault claim lacked medical necessity (see generally CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In opposition, plaintiff failed to raise a triable issue of fact. The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff’s medical records. Further, plaintiff’s affiant did not refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer (see CPT Med. Servs. P.C., 18 Misc 3d at 88). Nor is the separate, unsigned medical report submitted by plaintiff properly considered (see CPLR 2106; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 16, 2012