September 27, 2016

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))

Headnote

The court considered the denial of defendant's motion for summary judgment dismissing the complaint, as the issues for trial were in effect limited to medical necessity. Defendant appealed from the order denying its motion. The court found that the doctor's independent medical examination (IME) report provided a factual basis and medical rationale for the lack of medical necessity for further treatment. Plaintiff did not rebut defendant's prima facie showing, and the court found that defendant was otherwise entitled to judgment. As a result, the court granted defendant's motion for summary judgment dismissing the complaint. The holding was that defendant's motion for summary judgment was granted, and the order denying it was reversed.

Reported in New York Official Reports at Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U))

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co. (2016 NY Slip Op 51429(U)) [*1]

Theracare & Wellness, P.T., P.C. v Great N. Ins. Co.

2016 NY Slip Op 51429(U) [53 Misc 3d 135(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-952 K C

Theracare & Wellness, P.T., P.C., as Assignee of TELMO AVILA, Respondent,
against
Great Northern Insurance Company, Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 19, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is 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 Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016