Laperla Supply, Inc. v Progressive Northwestern Ins. Co. (2010 NY Slip Op 50586(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 6, 2008. The order, insofar as appealed from, implicitly denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint and deemed established as a fact for all purposes in the action that plaintiff had made out a prima facie case.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment in the principal sum of $910 and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for limitation of issues of fact for trial (see CPLR 3212 [g]). Defendant appeals from so much of the Civil Court’s order as denied its cross motion for summary judgment dismissing the complaint and as deemed established plaintiff’s prima facie case.

In support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground that the supplies provided were medically unnecessary (see 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]). In addition, annexed to the cross motion papers was an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that the supplies provided to plaintiff’s assignor were not medically [*2]necessary (see Med Tech Prods., Inc. v Geico Ins. Co., 25 Misc 3d 129[A], 2009 NY Slip Op 52111[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d 5 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut said showing, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d at 7; 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]). We pass on no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010