Radiology Today, P.C. v Mercury Ins. Co. (2010 NY Slip Op 52020(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 28, 2009. The order granted the branch of plaintiff’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint, and, upon reargument, vacated the prior order and denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to; as so modified, 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 services provided were not medically necessary. Plaintiff submitted an affirmation in opposition to defendant’s motion for summary judgment. By order entered December 5, 2008, the Civil Court granted defendant’s motion. By order entered May 28, 2009, the Civil Court granted the branch of a motion by plaintiff seeking leave to reargue, and, upon reargument, vacated the December 5, 2008 order and denied defendant’s motion for summary judgment. The instant appeal by defendant ensued.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied plaintiff’s bills on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue lacked medical necessity. Therefore, defendant established its 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 [*2]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]).

In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the doctor’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (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]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

On reargument, plaintiff contended that the Civil Court had overlooked the affirmation of Dr. Shapiro, which plaintiff had submitted in opposition to defendant’s original motion for summary judgment. However, this affirmation was insufficient to raise a triable issue of fact. Accordingly, the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010