May 6, 2013

Medical Assoc., P.C. v Unitrin Advantage Ins. Co. (2013 NY Slip Op 50757(U))

Headnote

The court considered the denial of claim forms, which denied the claims at issue on the grounds of lack of medical necessity, and sworn peer review reports that set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the MRIs at issue. The main issue was whether the services at issue were medically necessary. The court held that the denial of claim forms had been timely mailed and that the sworn peer review reports were sufficient to establish a lack of medical necessity for the MRIs at issue. Additionally, the court found that the affirmations by a medical doctor were sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary, and therefore, granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at Medical Assoc., P.C. v Unitrin Advantage Ins. Co. (2013 NY Slip Op 50757(U))

Medical Assoc., P.C. v Unitrin Advantage Ins. Co. (2013 NY Slip Op 50757(U)) [*1]

Medical Assoc., P.C. v Unitrin Advantage Ins. Co.

2013 NY Slip Op 50757(U) [39 Misc 3d 141(A)]

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1253 K C.

Medical Associates, P.C. as Assignee of LEE GAR and LING SIN LEE, Respondent, —
against
Unitrin Advantage Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 11, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Defendant established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted sworn peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the MRIs at issue. In opposition to defendant’s motion, plaintiff submitted affirmations by a medical doctor [*2]which were sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013