December 3, 2008

Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U))

Headnote

The insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary. In this action for assigned no-fault benefits, the provider appealed only the grant of the insurer's cross motion for summary judgment dismissing the complaint. The reports and affidavit supplied a factual basis and medical rationale for the reviewer's opinions, establishing the insurer's prima facie defense. The provider submitted no evidence refuting that showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving dismissal in the insurer's favor intact.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U))

[*1]
Delta Diagnostic Radiology, P.C. v Progressive Casualty Insurance Company
2008 NY Slip Op 52450(U) [21 Misc 3d 142(A)]
Decided on December 3, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1137 K C.

Delta Diagnostic Radiology, P.C. a/a/o PAMELA HARRIS, Appellant,

against

Progressive Casualty Insurance Company, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered April 19, 2007. The order, insofar as appealed from, granted defendant’s cross motion for summary judgment.


Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant’s unrebutted peer review reports established prima facie that the services provided, two MRIs, were not medically necessary. On appeal, plaintiff does not challenge so much of the order as denied its motion for summary judgment, but argues only that defendant’s proof failed to establish, prima facie, the absence of medical necessity.

We agree with the court below that defendant’s peer review reports and the affidavit of its peer review chiropractor provided a factual basis and medical rationale for the reviewer’s opinions that the MRIs billed for were not medically necessary and established prima facie that the services rendered were not medically necessary (Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 19 Misc 3d 130[A], 2008 NY Slip Op 50535[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff failed to present any evidence to refute that showing, the court below properly granted defendant’s cross motion for summary judgment dismissing the complaint (Eden Med., P.C. v [*2]Progressive Cas. Ins. Co., 19 Misc 3d 143[A], 2008 NY Slip Op 51098[U] [App Term, 2d & 11th Jud Dists 2008]; see also A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: December 03, 2008

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