August 31, 2012

Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))

Headnote

The relevant facts considered by the court were that the defendant had timely mailed denial of claim forms based on lack of medical necessity, along with an annexed affirmed independent medical examination report. The main issue decided was whether the plaintiff had rebutted the defendant's prima facie showing of lack of medical necessity, which would entitle the defendant to summary judgment dismissing the complaint. The holding of the court was that the defendant's motion for summary judgment dismissing the complaint was granted, as the plaintiff had failed to rebut the defendant's prima facie showing, and the denial of claim forms were based on a factual basis and medical rationale. The order of the Civil Court was reversed, and the defendant's motion was granted.

Reported in New York Official Reports at Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))

Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U)) [*1]

Five S & A Rehab Pt, P.C. v Praetorian Ins. Co.

2012 NY Slip Op 51724(U) [36 Misc 3d 154(A)]

Decided on August 31, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1238 K C.

Five S & A Rehab PT, P.C. as Assignee of ORMELLA THAKOORDIAL, Respondent, —
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 8, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant established that it had timely mailed its denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The claims were denied on the ground of lack of medical necessity based upon an annexed affirmed independent medical examination report which demonstrated a factual basis and a medical rationale for the conclusion that there was no medical necessity for [*2]the services at issue. As plaintiff failed to rebut defendant’s prima facie showing, defendant was entitled to summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012