August 5, 2011

Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))

Headnote

The main issue in this case was whether the peer review report submitted by the defendant established a lack of medical necessity for the services rendered. The court found that the defendant's showing of a lack of medical necessity was not rebutted by the plaintiff. Additionally, the court found that the defendant's NF-10 denial of claim forms were timely, a finding which the plaintiff did not challenge. Ultimately, the court held that the defendant's cross motion for summary judgment dismissing the complaint should have been granted based on the lack of medical necessity and the timely denial of claim forms. Therefore, the order of the Civil Court was reversed and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))

Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U)) [*1]

Manhattan Med. Imaging, P.C. v Praetorian Ins. Co.

2011 NY Slip Op 51541(U) [32 Misc 3d 138(A)]

Decided on August 5, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Decided on August 5, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-2377 K C.

Manhattan Medical Imaging, P.C. as Assignee of VINTONYAK BOGDAN, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court made a finding, pursuant to CPLR 3212 (g), that defendant’s NF-10 denial of claim forms were timely, but denied defendant’s cross motion on the ground that the peer review report annexed to defendant’s cross motion did not establish a lack of medical necessity for the services rendered.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered. Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff. In view of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial of claim forms were timely, a finding which plaintiff does not challenge, defendant’s cross motion for summary judgment dismissing the complaint should have been 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 & [*2]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, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: August 05, 2011