August 23, 2012

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

Headnote

The court considered an appeal from an order denying defendant's motion for summary judgment dismissing the complaint in a case by a provider to recover assigned first-party no-fault benefits. The only issue on appeal was whether the services provided were medically necessary, as the timeliness of defendant's denials was conceded by the plaintiff. Defendant submitted two affirmed peer review reports to support their motion, which stated there was a lack of medical necessity for the services. However, the plaintiff submitted an affidavit from a doctor which demonstrated the existence of a question of fact as to medical necessity. The court affirmed the order without costs, holding that there was a question of fact as to the medical necessity of the services provided.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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