March 8, 2010

Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50384(U))

Headnote

The case involved an appeal from an order of the Civil Court of the City of New York, Queens County denying the defendant's motion for summary judgment dismissing the complaint by a provider to recover assigned first-party no-fault benefits. The defendant had moved for summary judgment on the ground of lack of medical necessity, and the court had found that the plaintiff's doctor's affirmation raised a triable issue of fact as to whether the services provided were medically necessary. However, the defendant had made a prima facie showing that it had properly and timely denied the claim based on lack of medical necessity, and the burden shifted to the plaintiff to raise a triable issue of fact. In opposition to the defendant's motion, the plaintiff submitted an affirmation executed by their own medical director, which was found to be improper and the Civil Court should not have considered any facts set forth in said affirmation. As plaintiff failed to proffer any evidence in admissible form to raise an issue of fact, the defendant was entitled to summary judgment and the lower court's decision was reversed.

Reported in New York Official Reports at Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50384(U))

Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50384(U)) [*1]

Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group

2010 NY Slip Op 50384(U) [26 Misc 3d 142(A)]

Decided on March 8, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-804 Q C.

Doshi Diagnostic Imaging Services, P.C. a/a/o Ruby F. Murphy, Respondent,
against
Mercury Insurance Group, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court’s order, insofar as appealed from, denied defendant’s motion, finding that plaintiff’s doctor’s affirmation raised a triable issue of fact as to whether the services provided were medically necessary.

Defendant, through the submission of the affidavit of its claims representative and the affirmed independent medical examination report of its examining doctor, made a prima facie showing that it had properly and timely denied plaintiff’s claim based on lack of medical necessity (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50731[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, [*2]265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to proffer any evidence in admissible form to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]), defendant was entitled to summary judgment. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 2010