March 12, 2008

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))

Headnote

The court considered the motion for summary judgment by the plaintiff and the cross motion for summary judgment by the defendant in an action to recover assigned first-party no-fault benefits. The issue decided was whether the supplies provided by the plaintiff were medically necessary, as the defendant had timely denied the claim on that ground based on a peer review report. The holding of the court was that the defendant established a lack of medical necessity and that the denial of claim form interposing said defense was timely. As a result, the court affirmed the denial of plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. The court did not pass on the issue of plaintiff's establishment of its prima facie case, as the defendant did not raise any issue in that regard.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U))

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50534(U)) [*1]

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co.

2008 NY Slip Op 50534(U) [19 Misc 3d 130(A)]

Decided on March 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 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
2007-53 K C.

Eagle Surgical Supply, Inc. a/a/o Andy James, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order 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. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant established a lack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

Turning to the merits of defendant’s cross motion for summary judgment, defendant established that it timely denied plaintiff’s claim on the ground that the supplies provided were not medically necessary based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the supplies provided by plaintiff were not medically necessary and plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary
judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v American
Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 [*2]NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 12, 2008