June 4, 2010

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))

Headnote

The court considered the issue of whether the supplies provided to the plaintiff's assignor were medically necessary in a case involving a claim for first-party no-fault benefits. The defendant made a prima facie showing of entitlement to summary judgment by establishing the timely mailing of the claim denial form and submitting an affirmed peer review report of its doctor, which concluded that there was a lack of medical necessity for the supplies provided. The Civil Court granted the defendant's motion for summary judgment, and the plaintiff's opposition papers failed to rebut the showing that the supplies were not medically necessary. As a result, the court affirmed the order without costs, holding that the defendant's motion for summary judgment dismissing the complaint was properly granted, as the plaintiff failed to rebut the defendant's prima facie showing.

Reported in New York Official Reports at Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U))

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U)) [*1]

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co.

2010 NY Slip Op 50997(U) [27 Misc 3d 141(A)]

Decided on June 4, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-929 K C.

Ortho-Med Surgical Supply, Inc. a/a/o LINDA McCOLLUM, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 13, 2009. The order granted 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 moved for summary judgment dismissing the complaint on the ground that the supplies provided to plaintiff’s assignor were not medically necessary. The Civil Court granted the motion, finding that plaintiff’s opposition papers failed to rebut defendant’s showing that the supplies provided were not medically necessary. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for the supplies provided (see 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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for [*2]summary judgment dismissing the complaint was properly 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]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010