October 27, 2011

Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))

Headnote

The main issue in this case was whether the defendant's cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 should have been granted. The court considered the sworn independent medical examination (IME) report submitted by the defendant, which determined a lack of medical necessity for the services at issue. The affidavit from the plaintiff's chiropractor failed to meaningfully refer to or rebut the conclusions set forth in the IME report. The court found that the defendant had established that it had timely denied the claims, a finding which the plaintiff did not dispute, and therefore held that the defendant's cross motion seeking summary judgment dismissing the claims for those dates should have been granted. Ultimately, the court reversed the decision and held in favor of the defendant.

Reported in New York Official Reports at Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))

Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U)) [*1]

Morris Park Chiropractic, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 52017(U) [33 Misc 3d 135(A)]

Decided on October 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Morris Park Chiropractic, P.C. as Assignee of IDDRISS MALE, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

In support of its cross motion, defendant submitted, among other things, a sworn independent medical examination (IME) report which set forth the examining chiropractor’s determination that there was a lack of medical necessity for the services at issue. The affidavit from plaintiff’s chiropractor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claims, a finding which plaintiff does not dispute, the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 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 & 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. [*2]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 the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011