July 16, 2010

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 51246(U))

Headnote

The court considered an appeal from an order of the Civil Court that granted the defendant's motion for summary judgment dismissing the complaint in an action to recover assigned first-party no-fault benefits. The defendant had established that it had timely denied the claim on the ground of lack of medical necessity and had submitted an affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the medical services at issue were not medically necessary. The plaintiff did not dispute that the defendant had established lack of medical necessity and did not rebut the defendant's showing that the services at issue were not medically necessary. The main issue decided was whether the defendant's motion for summary judgment was properly granted, and the holding of the court was that the order was affirmed without costs as the plaintiff's remaining contentions lacked merit.

Reported in New York Official Reports at Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 51246(U))

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 51246(U)) [*1]

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co.

2010 NY Slip Op 51246(U) [28 Misc 3d 129(A)]

Decided on July 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-739 K C.

Hillcrest Radiology Associates a/a/o Leroy Stewart, Appellant,
against
State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 21, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

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. The Civil Court granted defendant’s motion, and the instant appeal ensued.

Plaintiff does not dispute that defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity. In addition, in support of its motion for summary judgment, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that the services at issue were not medically necessary was unrebutted by plaintiff. Therefore, defendant’s motion for summary was properly granted (see e.g. 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., [*2]16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In view of the foregoing, and as plaintiff’s remaining contentions lack merit, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: July 16, 2010