September 22, 2017

XVV, Inc. v Farmington Cas. Co. (2017 NY Slip Op 51231(U))

Headnote

The provider's medical affidavit raised a triable issue of medical necessity despite an adequately supported peer review. The insurer's peer review report sufficiently supplied a factual basis and medical rationale for finding the supplies medically unnecessary. The provider's opposing affidavit nevertheless prevented summary judgment dismissing the assigned no-fault claim. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the denial of the provider's own summary judgment motion in place.

Reported in New York Official Reports at XVV, Inc. v Farmington Cas. Co. (2017 NY Slip Op 51231(U))

[*1]
XVV, Inc. v Farmington Cas. Co.
2017 NY Slip Op 51231(U) [57 Misc 3d 132(A)]
Decided on September 22, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-918 Q C

XVV, Inc., as Assignee of Wilby Lyndor, Appellant,

against

Farmington Casualty Company, Respondent.


Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Medgine Bernadotte, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, 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 which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground of a lack of medical necessity.

Contrary to plaintiff’s argument on appeal, the peer review report submitted by defendant sufficiently set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. However, as plaintiff further argues, the medical affidavit that plaintiff submitted in opposition was sufficient to raise a triable issue of fact as to medical necessity.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017

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