October 1, 2010

I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U))

Headnote

The court considered the motion by the defendant for summary judgment dismissing the complaint, arguing lack of medical necessity for first-party no-fault benefits. Plaintiff submitted only an affirmation from its counsel in opposition to the motion. The court denied the defendant's motion, finding that the only issue for trial was the medical necessity of the supplies at issue. On appeal, the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint. This decision was based on the sufficiency of the affidavit submitted by the defendant, as well as the lack of a meaningful rebuttal to the conclusions set forth in the peer review report by the plaintiff, leading the court to find in favor of the defendant.

Reported in New York Official Reports at I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U))

I.V. Med. Supply, Inc. v Mercury Ins. Group (2010 NY Slip Op 51736(U)) [*1]

I.V. Med. Supply, Inc. v Mercury Ins. Group

2010 NY Slip Op 51736(U) [29 Misc 3d 128(A)]

Decided on October 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1743 K C.

I.V. Medical Supply, Inc. as Assignee of KENNETH FLEMING, Respondent,
against
Mercury Ins. Group, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 21, 2009. 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 moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to the motion, plaintiff submitted only an affirmation from its counsel. The court denied defendant’s motion, finding that the sole issue to be determined at trial was the medical necessity of the supplies at issue. This appeal by defendant ensued.

The affidavit submitted by defendant was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, a sworn peer review report, as well as an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which [*2]meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), defendant’s motion for summary judgment is granted (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]; ain 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]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010