January 17, 2012

Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U))

Headnote

The court considered the defendant's unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity in an action by a provider to recover assigned first-party no-fault benefits. The defendant submitted an affidavit of an employee of its claims division, as well as the affidavit of a chiropractor and his independent medical examination report, to demonstrate a lack of medical necessity for the equipment provided to the plaintiff's assignor. The main issue decided was whether the defendant's motion for summary judgment should be granted, and the court held that the defendant's motion should have been granted as the plaintiff did not submit papers opposing it. Therefore, the order denying the defendant's motion for summary judgment was reversed and the defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U))

Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U)) [*1]

Total Equip., LLC v Praetorian Ins. Co.

2012 NY Slip Op 50078(U) [34 Misc 3d 141(A)]

Decided on January 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2243 N C.

Total Equipment, LLC as Assignee of GEORGE OSEI-TUTU, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), dated June 24, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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, defendant appeals from an order which denied its unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claims on the ground of lack of medical necessity (see Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affidavit of defendant’s chiropractor and his independent medical examination (IME) report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the equipment provided to plaintiff’s assignor (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

As plaintiff did not submit papers opposing defendant’s motion, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 17, 2012