June 17, 2015

Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U))

Headnote

The physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary. The insurer established timely denials supported by an orthopedic IME report and follow-up report supplying a factual basis and medical rationale. The treating physical therapist's affidavit did not meaningfully address contrary findings, including normal cervical and lumbar range-of-motion testing. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the physical therapy claims at issue; the appeal concerned only those claims. The insurer's remaining arguments were not considered because they were first raised in its reply brief.

Reported in New York Official Reports at Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U))

[*1]
Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co.
2015 NY Slip Op 50900(U) [47 Misc 3d 156(A)]
Decided on June 17, 2015
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, J.
570100/15
Rummel G. Mendoza, D.C., P.C., a/a/o Miriam Liburd, and L.N.L. Physical Therapy Rehabilitiation, a/a/o Miriam Liburd Plaintiffs-Respondents,

against

Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered March 4, 2014, as denied its motion for summary judgment dismissing the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation, for services rendered September 2, 2010 through November 23, 2010 and January 3, 2011 through March 14, 2011, in the amount of $2,220.

Per Curiam.

Order (James E. d’Auguste, J.), entered March 4, 2014, insofar as appealed from, reversed, with $10 costs, motion granted and the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation in the amount of $2,220, dismissed.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable issue. The affidavit of plaintiff’s treating physical therapist failed to meaningfully address the contrary findings made by defendant’s examining doctor, including the normal results of the range of motion testing of the assignor’s cervical and lumbar spine (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [1st Dept 2007]). Defendant’s remaining arguments, raised for the first time in its reply brief, are not entitled to consideration (Mehmet v Add2Net, Inc., 66 AD3d 437 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur
Decision Date: June 17, 2015

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