August 27, 2012

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))

Headnote

The court considered a provider's appeal to recover first-party no-fault benefits. The main issue decided was whether the defendant had timely denied the claims and whether there was a lack of medical necessity for the services at issue. The court held that the affidavit submitted by the defendant's litigation examiner was sufficient to establish that the claims were timely denied, and that the defendant had submitted an affirmed independent medical examination report which provided a factual basis and medical rationale for the lack of medical necessity. The court also held that as the plaintiff had not rebutted the defendant's prima facie showing, and their remaining contentions lacked merit, the defendant was entitled to summary judgment dismissing the complaint.

Reported in New York Official Reports at VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U)) [*1]

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51659(U) [36 Misc 3d 150(A)]

Decided on August 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2590 K C.

VE Medical Care, P.C. as Assignee of JORGE CORTE, Appellant, —
against
NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 29, 2010. 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to plaintiff’s arguments on appeal, the affidavit submitted by defendant’s litigation examiner was sufficient to establish that defendant had timely denied the claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In addition, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. As plaintiff’s remaining contentions lack merit, defendant was [*2]entitled to summary judgment dismissing the complaint (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]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 27, 2012