SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered October 15, 2012, as denied its motion for summary judgment dismissing the complaint or, alternatively, to compel discovery.

Per Curiam.

Order (Andrea Masley, J.), entered October 15, 2012, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

In opposition to the defendant-insurer’s prima facie showing that the assignor’s treated medical condition was not causally related to the underlying motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999]), plaintiff failed to raise a material issue requiring a trial of its claim for assigned no-fault first-party benefits. The bare bones affidavit filed by plaintiff’s principal, an orthopedist who performed the surgical procedure giving rise to this no-fault action, was insufficient to defeat summary judgment. The affiant failed to set forth a factual basis for his single-sentence conclusion on the critical causation issue, and did not address, let alone rebut, the contrary findings made by defendant’s medical experts. We note plaintiff’s failure to file a respondent’s brief on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 19, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 19, 2012, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that plaintiff’s assignor’s (voluminous) medical file lacked “useful/supportive information” — without essaying to explain what medical records, if any, were missing from the file — was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 17, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie case “by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as [*2]a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]; see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

In its motion, plaintiff established the submission of the two claim forms at issue, by annexing the denials which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Contrary to defendant’s argument on appeal, plaintiff also established that the claim forms at issue were admissible for the truth of the transactions recorded therein, pursuant to CPLR 4518 (a), thereby making a prima facie showing of the fact and the amount of the loss sustained. Moreover, plaintiff demonstrated that defendant’s proffered defense of lack of medical necessity was without merit as a matter of law, in that the Civil Court had issued a prior order precluding defendant from offering any evidence in support of its claimed defense. In opposition to the motion, defendant failed to raise a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rios, J.P., Weston and Aliotta, JJ., concur.
Decision Date: April 15, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from three orders of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), dated July 17, 2008 (two orders) and July 18, 2008, which granted defendant’s motions for summary judgment dismissing the complaints.

Per Curiam. [*2]

Orders (Sharon A.M. Aarons, J.), dated July 17, 2008 (two orders) and July 18, 2008, consolidated for the purpose of this decision, affirmed, with $10 costs on each action.

In these three actions by the provider, plaintiff Physical Performance Testing of NY (Physical), to recover assigned first-party no-fault benefits, defendant New York Central Mutual Insurance Company (Mutual) moved for summary judgment. Civil Court granted Mutual’s motions for summary judgment dismissing Physical’s complaints, finding that Physical was unlicensed and, therefore, ineligible for reimbursement of first-party no-fault benefits. Physical appeals, as limited by its brief, and we affirm.

It is well-settled that a provider of healthcare services is not eligible for reimbursement of assigned first-party no-fault benefits “under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (Insurance Department Regulations [11 NYCRR] § 65-3.16[a][12]; see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]). State law mandates that professional service corporations be owned and controlled only by licensed professionals (see Business Corporation Law §§ 1503[a], 1507, 1508), and that licensed professionals render the services provided by such corporations (see Business Corporation Law § 1504[a]; 11 NYCRR 65-3.16[a][6]). A professional corporation, which is actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law, is not entitled to be reimbursed for no-fault benefits (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]).

The Court of Appeals has held that the Superintendent of Insurance promulgated 11 NYCRR 65-3.16(a)(12) so as to “exclud[e] from the meaning of basic economic loss’ payments made tounlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 320; see Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, 408 [2006]).

Applying these principles to the matter at bar, Mutual has made a prima facie showing of entitlement to summary judgment dismissing the complaints by demonstrating that the services rendered by Physical are not reimbursable expenses under the No-Fault Law. In opposition, Physical failed to raise a triable issue of fact with respect to its claims because they were not performed by a medical professional corporation, or a licensed health provider.

We have examined Physical’s remaining contentions, and to the extent they are preserved for appellate review, find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 11, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint and plaintiff’s cross motion for summary judgment are remitted to the Civil Court for a new determination after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignors’ alleged eligibility for workers’ compensation benefits, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion, on the ground that defendant had failed to proffer evidence in admissible form in support of its defense, and granted plaintiff’s cross motion.

Defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiff’s assignors had been acting as employees at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (Board) (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, defendant’s motion and plaintiff’s cross motion should not have been determined. Instead, the Civil Court should decide the motions after final Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 08, 2013

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011. The order granted defendant’s motion to stay the action pending a determination of the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion to stay the action pending a determination of the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

We agree with the Civil Court that defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], [*2]2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (Board) (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

In view of the foregoing, the Civil Court properly granted defendant’s motion for a stay pending the Board’s determination of the parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; see also Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [holding, among other things, that in the event plaintiff failed to file proof with the motion court of an application to the Workers’ Compensation Board within 90 days of the date of the Appellate Term’s decision and order, defendant’s cross motion for summary judgment would be granted unless plaintiff could show good cause why the complaint should not be dismissed]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [same]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [same]).

Accordingly, the order of the Civil Court is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 08, 2013

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

We find that defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Pilku v 24535 Owners Corp., 19 AD3d [*2]722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 04, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 4, 2011. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an examination before trial and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an
examination before trial is granted and the examination shall be held within 60 days of
the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that “the dated correspondence are timely, valid and that these facts [*2]have been proved prima facie,” and for an order compelling plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. The Civil Court “granted” both motions to the extent of finding that the “only issues remaining for trial related to the medical necessity of the services provided and . . . if the billing was in accordance with the New York State Workers’ Compensation Fee Schedule.” Defendant appeals, as limited by its brief, from so much of the order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an EBT and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

Plaintiff submitted an affirmation by its treating physician which was sufficient to raise triable issues of fact as to the medical necessity of the services rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126[A], 2011 NY Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and as to whether the fees charged were in accordance with the Workers’ Compensation fee schedule. Consequently, the branch of defendant’s motion seeking summary judgment was properly denied. However, the branch of defendant’s motion seeking an order compelling plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). Defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s defense.

With respect to the Civil Court’s finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, we conclude, contrary to defendant’s contention, that the affidavit by plaintiff’s billing and collection department administrator was sufficient to establish that the claim forms annexed to plaintiff’s cross motion were admissible as proof of the acts, transactions, occurrences, or events recorded therein, pursuant to CPLR 4518 (a) (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P .C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT is granted upon the terms set forth above.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: March 29, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered April 27, 2011. The order denied the branches of defendant’s motion seeking leave to renew and reargue defendant’s opposition to plaintiff’s motion for summary judgment.

ORDERED that the appeal from so much of the order as denied the branch of defendant’s motion seeking leave to reargue its opposition to plaintiff’s motion for summary judgment is dismissed as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost two months after their stipulated due date, the Civil Court (Carolyn E. Wade, J.) rejected defendant’s papers and, by order entered June 11, 2010, granted plaintiff’s motion on default. Thereafter, defendant moved pursuant to CPLR 2221 (d) and (e), for leave to “renew and reargue” its [*2]opposition to plaintiff’s prior motion for summary judgment and, upon renewal and reargument, to deny plaintiff’s motion. Defendant’s motion also sought to vacate the June 11, 2010 order pursuant to CPLR 5015 (a) (1). By order entered April 27, 2011, the Civil Court (Johnny Lee Baynes, J.) denied the branches of defendant’s motion seeking leave to renew and reargue. The order did not address the branch of defendant’s motion seeking to vacate the June 11, 2010 order.

The appeal from so much of the order as denied the branch of defendant’s motion seeking leave to “reargue” must be dismissed, as no appeal lies from an order denying reargument (see Barrafato v Franzitta, 308 AD2d 468 [2003]).

The denial of the branch of defendant’s motion seeking leave to “renew” its “opposition” to plaintiff’s motion for summary judgment was proper since defendant had defaulted in opposing plaintiff’s motion and, thus, defendant’s remedy was to seek to vacate the default order. Finally, the branch of plaintiff’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the June 11, 2010 order was not addressed in the order appealed from and, therefore, remains pending and undecided (see Creese v Long Is. Light. Co., 98 AD3d 708, 711 [2012]; Katz v Katz, 68 AD2d 536 [1979]).

Accordingly, the order, insofar as reviewed, is affirmed.
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 29, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 15, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross 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, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that its denial of claim forms and verification requests had been timely mailed (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]). Defendant also demonstrated that, with respect to plaintiff’s third cause of action, plaintiff had failed to respond to defendant’s verification requests. In opposition to the cross motion, plaintiff did not show that it had sent information responsive to defendant’s requests. Consequently, defendant was entitled to [*2]summary judgment dismissing plaintiff’s third cause of action as premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Defendant submitted, among other things, affirmed peer review reports which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue in plaintiff’s first, second and fourth causes of action. The affidavit by plaintiff’s treating doctor submitted in opposition to the cross motion failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second and fourth causes of action should have been 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, 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 & 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 & 11th Jud Dists 2007]).

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

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 29, 2013