April 5, 2011

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))

Headnote

The court considered the plaintiffs' motion for summary judgment in an action to recover assigned first-party no-fault benefits. Plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18. In opposition, defendant failed to raise a triable issue of fact, and even assuming that defendant issued timely denials of plaintiffs' claims, the peer review report relied upon by defendant to deny plaintiffs' claims was deemed conclusory and failed to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity. The main issue decided was whether the plaintiffs were entitled to summary judgment on their claims for first-party no-fault benefits, and the holding of the court was to reverse the order denying the motion for summary judgment and to grant summary judgment in favor of the plaintiffs in the principal sums of $3,000 and $6,902.18.

Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U)) [*1]

Devonshire Surgical Facility v American Tr. Ins. Co.

2011 NY Slip Op 50513(U) [31 Misc 3d 129(A)]

Decided on April 5, 2011

Appellate Term, First Department

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

As corrected in part through April 12, 2011; it will not be published in the printed Official Reports.

Decided on April 5, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570946/10.

Devonshire Surgical Facility, Carnegie Hill Orthopedic Services, P.C., and Allen C. Chamberlin a/a/o Maria Tapia, Plaintiffs-Appellants, – –
against
American Transit Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 5, 2008, which denied their motion for summary judgment in the principal sum of $9,902.18.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 5, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $6,902.18, and plaintiff Devonshire Surgical Facility in the principal sum of $3,000. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 05, 2011