July 8, 2011

MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51318(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, in an action to recover assigned first-party no-fault benefits. The main issue was whether the defendant was entitled to summary judgment dismissing the complaint. The court held that the defendant's cross motion for summary judgment dismissing the complaint should have been granted, as defendant's showing that the supplies were not medically necessary was unrebutted by the plaintiff. The court also found that defendant had timely denied plaintiff's claims, and the sole issue for trial was the medical necessity of the supplies provided to plaintiff's assignor. Therefore, the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51318(U))

MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51318(U)) [*1]

MSSA Corp. v American Tr. Ins. Co.

2011 NY Slip Op 51318(U) [32 Misc 3d 131(A)]

Decided on July 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1217 K C.

MSSA Corp. as Assignee of ALBA ROSADO, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. The order, insofar as appealed from, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

In light of the foregoing and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it issued timely denials,” a finding which plaintiff does not dispute, 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 & 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]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011