April 25, 2012

Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U))

Headnote

The main issues in this case involved a dispute over first-party no-fault benefits for medical services rendered. The court considered whether the defendant's timely denial of the claim based on lack of medical necessity was valid, and if so, whether the plaintiff had sufficiently rebutted this denial. The court held that the defendant's timely denial, supported by a peer review report and affidavit, demonstrated a lack of medical necessity, establishing their prima facie entitlement to summary judgment. The court found that the plaintiff's supervising physician's affidavit failed to justify with specificity the additional studies and did not rebut the conclusions set forth in the peer review report. Therefore, the court reversed the order, denied the plaintiff's motion for summary judgment, and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U))

Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U)) [*1]

Neomy Med., P.C. v American Tr. Ins. Co.

2012 NY Slip Op 50769(U) [35 Misc 3d 135(A)]

Decided on April 25, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012

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

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

Neomy Medical, P.C. as Assignee of JERMEL WASHINGTON, Respondent, —
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 2, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied 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 from an order of the Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that it had timely denied (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]) the claim at issue on the ground of lack of medical necessity. Contrary to the Civil Court’s conclusion, the peer review report and accompanying affidavit by the peer reviewer were sufficient to demonstrate a lack of medical necessity for the services rendered, thereby establishing defendant’s prima facie entitlement to summary judgment (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]). Since the affidavit by plaintiff’s supervising physician failed to justify with specificity the additional studies, it did not rebut the conclusions set forth in the peer review report. Thus, plaintiff failed to raise an issue of fact (see 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]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d [*2]128[A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 2012