January 25, 2012

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment dismissing the complaint in an action to recover first-party no-fault benefits. The court considered the evidence provided by the defendant, including the timely mailing of denial of claim forms and competent medical evidence that the diagnostic testing giving rise to the plaintiff's claims lacked medical necessity. The main holding of the case was that the defendant was entitled to summary judgment, as they had made a prima facie showing of entitlement by establishing the proper and timely mailing of denial of claim forms and submitting competent medical evidence. The court found that the plaintiff's opposition, consisting of an attorney's affirmation unaccompanied by any medical evidence, was insufficient to raise a triable issue. Therefore, the court reversed the order of the Civil Court and granted the defendant's motion for summary judgment, dismissing the complaint.

Reported in New York Official Reports at Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U)) [*1]

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 50102(U) [34 Misc 3d 143(A)]

Decided on January 25, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-266.

Diagnostic Medicine, P.C., a/a/o Angelo Kitkas, Plaintiff-Respondent, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 8, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 8, 2010, reversed, without costs, defendant’s motion for summary judgment granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, defendant made a prima facie showing of entitlement to summary judgment dismissing the complaint by establishing its proper and timely mailing of the denial of claim forms at issue herein (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17-18 [2007]), and submitting competent medical evidence, including a sworn peer review report, that the diagnostic testing giving rise to plaintiff’s claims lacked medical necessity (see CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Plaintiff’s opposition consisting of an attorney’s affirmation — unaccompanied by any medical evidence or other competent proof — was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d at 88).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 25, 2012