July 24, 2012

Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co. (2012 NY Slip Op 51371(U))

Headnote

The court considered the fact that the defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting an orthopedist's peer review report, which detailed a factual basis and medical rationale for concluding that the medical services in question lacked medical necessity. The main issue decided was whether the defendant-insurer was entitled to summary judgment dismissing the complaint, and the court held that the defendant-insurer was entitled to summary judgment. The court found that the plaintiff's opposing submission, consisting solely of an attorney's affirmation together with unsworn, and thus inadmissible, medical reports was insufficient to withstand summary judgment. Therefore, the court reversed the order denying the defendant's motion for summary judgment, granted the motion, and dismissed the complaint.

Reported in New York Official Reports at Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co. (2012 NY Slip Op 51371(U))

Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co. (2012 NY Slip Op 51371(U)) [*1]

Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co.

2012 NY Slip Op 51371(U) [36 Misc 3d 136(A)]

Decided on July 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Hunter, Jr., JJ
570044/12.

Hillside Surgicare Diagnostic and Treatment Center, LLC d/b/a Hillside Surgicare f/k/a Hillside Manor Comp. Care, a/a/o Christina Centeno-Guity, Plaintiff-Respondent, – –
against
Utica Mutual Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered November 7, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered November 7, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, an orthopedist’s peer review report, setting forth in some detail a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff’s claim for first-party no-fault benefits lacked medical necessity. Notably, defendant’s peer reviewer emphasized, among other factors, that his review of the assignor’s medical records showed “no findings of instability” or “positive … orthopedic signs” in connection with the assignor’s claimed shoulder injuries and that, although the arthoscopic procedure undertaken by plaintiff related to its assignor’s left shoulder, the assignor’s “chief complaint” at her initial, post-accident consultation involved her right shoulder. Plaintiff’s opposing submission, consisting solely of an attorney’s affirmation together with unsworn, and thus inadmissible medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to withstand summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 24, 2012