August 23, 2012

Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))

Headnote

The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports. The insurer sought summary judgment dismissing an action for assigned no-fault benefits based on lack of medical necessity. Its two affirmed peer review reports supplied a factual basis and medical rationale for that defense, but the provider's opposing medical affidavit demonstrated a question of fact. The provider conceded that the denials were timely, leaving medical necessity as the sole issue on appeal. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.

Reported in New York Official Reports at Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))

[*1]
Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co.
2012 NY Slip Op 51646(U) [36 Misc 3d 148(A)]
Decided on August 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

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


PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2784 Q C.
Northshore Chiropractic Diagnostics, P.C. as Assignee of MARCIA CANO, Respondent, —

against

Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered August 13, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 denying defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. In both the Civil Court and on appeal, plaintiff has conceded the timeliness of defendant’s denials; accordingly, the only issue on appeal is whether the services provided were medically necessary.

In support of its motion, defendant submitted two affirmed peer review reports which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. However, in opposition, plaintiff submitted an affidavit from a doctor which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 23, 2012

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