SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 23, 2010. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint and found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision thereof finding that plaintiff had established its prima facie case, and by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding for all purposes in the action, that plaintiff had established its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and found, implicitly pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. [*2]

We note initially that plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of the president of its third-party biller was insufficient to establish that the documents annexed to plaintiff’s motion papers were admissible pursuant to CPLR 4518 (a) (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff was not entitled to a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case.

In support of defendant’s cross motion for summary judgment, defendant submitted, among other things, an affidavit of its claims examiner, which established that the claim denial forms had been timely mailed in accordance with defendant’s standard office practices and procedures (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, however, did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial consultation on August 29, 2007 (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), nor did it establish as a matter of law that the amounts sought by plaintiff for acupuncture treatment rendered from August 30, 2007 through October 25, 2007 were in excess of the amounts permitted by the workers’ compensation fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied the branch of defendant’s cross motion seeking the dismissal of these claims.

In support of its cross motion, defendant submitted a sworn report of the licensed acupuncurist/chiropractor who had conducted an independent medical examination of plaintiff’s assignor on October 16, 2007. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. Since defendant’s showing that the services rendered from October 30, 2007 through January 30, 2008 were not medically necessary was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing plaintiff’s claims for these dates of service (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 of the Civil Court is modified by striking the provision thereof finding that plaintiff established a prima facie case and by providing that the branch of defendant’s cross motion for summary judgment seeking to dismiss plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: February 14, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated November 6, 2009. The order granted defendant’s motion to amend its answer to add affirmative defenses.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to amend its answer, approximately four years after joinder of issue, to add affirmative defenses asserting the existence of a personal injury deductible in the insurance contract and denying that plaintiff’s assignor was an eligible injured person. The Civil Court granted the motion.

Plaintiff does not deny that the underlying insurance contract contains a deductible or that defendant’s timely NF-10 denial of claim forms asserted the existence of the deductible (see e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U] [App Term, 2d & 11th Jud Dists 2005]). Although there was a lengthy period of time between the joinder of issue and the making of the motion to amend, lateness alone is not a barrier to amendment absent a showing of “significant” prejudice to the opposing party (Rodriguez v Panjo, 81 AD3d 805, 806 [2011]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [*2][1983]), or that the proposed defenses are “patently devoid of merit” or “palpably insufficient to state a . . . defense” (Lucido v Mancuso, 49 AD3d 220, 229 [2008]; see also Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51570[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion’s merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant’s claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion’s denial is not established (e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U]).

Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2011]; see Ops. Gen. Counsel NY Ins. Dept. No 08-04-16 [April 2008] [assignee-provider “may pursue all of the remedies that would have been available to the patient”]). Upon the record before us, we find that the Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer to interpose the aforementioned affirmative defenses (CPLR 3025 [a]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2009. The order denied plaintiff’s motion to, among other things, compel certain discovery and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

After plaintiff had commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignors, defendant commenced a declaratory judgment action in Supreme Court, Queens County, against various medical providers and their assignors, including plaintiff and its assignors herein. By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action. In December 2007, plaintiff herein moved to compel certain discovery from defendant or, in the alternative, to strike defendant’s answer. Defendant cross-moved for summary judgment [*2]dismissing the complaint, contending that this action was barred by virtue of the October 26, 2007 order of the Supreme Court. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Furthermore, based on the Supreme Court’s order, plaintiff’s motion to compel discovery or, in the alternative, strike defendant’s answer was rendered moot, and, thus, properly denied. Plaintiff’s remaining contentions lack merit.

Accordingly, the order of the Civil Court is affirmed.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan Lebowitz, J.H.O.), entered September 22, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to strike the action from the trial calendar and to compel plaintiff to produce plaintiff’s owner for an examination before trial, and denied plaintiff’s cross motions seeking, among other things, costs and sanctions.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking to strike the action from the trial calendar and to compel plaintiff to produce plaintiff’s owner for an examination before trial, and denied plaintiff’s cross motions seeking, among other things, costs and sanctions.

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to strike the matter from the trial calendar (see Citywide [*2]Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In addition, upon a review of the record, we see no basis to disturb so much of the Civil Court’s order as granted the branch of defendant’s motion seeking to compel plaintiff to produce plaintiff’s owner for an examination before trial. In light of the foregoing, plaintiff’s cross motions were properly denied.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered July 9, 2010. The order granted plaintiffs’ motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court granted plaintiffs’ motion to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). The owner of plaintiff Exact Medical Services, P.C. was Dr. Ronald Collins, who passed away on September 15, 2008. Anna Val, Esq., was appointed as the administrator of the estate of Dr. Collins on September 9, 2009. Her role was to preserve the value of, and prevent loss to, the estate.

For the reasons stated in Eastern Star Acupuncture, P.C. v Allstate Ins. Co. ( Misc 3d , 2012 NY Slip Op [Appeal No. 2010-2113 Q C], decided herewith), the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: February 02, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 2, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**36 Misc 3d at 42} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

This action by providers to recover assigned first-party no-fault benefits was “marked off” the trial calendar on September 25, 2009. On May 26, 2010, plaintiffs moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In a supporting affirmation, plaintiffs’ counsel stated that plaintiffs were “prepared to proceed to trial, and . . . to present proof . . . that payment of no-fault benefits [was] overdue.” In opposition, defense counsel argued that prosecution of the claims of plaintiff Painless Medical, P.C. could not be pursued because Dr. Ronald Collins, the sole shareholder, officer and director of Painless Medical, P.C., had passed away on September 15, 2008, and Anna Val, Esq., who had been appointed as the administrator of the estate of Dr. Collins on September 9, 2009, had no authority over Painless Medical, P.C. Defendant argued, among other [*2]things, that Ms. Val lacked the capacity to administer or become a shareholder of Painless Medical, P.C. because she did not possess a license to practice medicine, which is a requirement of Business Corporation Law §§ 1507 and 1508, and, therefore, she was not entitled to pursue pending litigation or collect settlements and judgments involving this provider.

“[A] corporation can act only through its officers and agents” (14A NY Jur 2d, Business Relationships § 627; see also 14A NY Jur 2d, Business Relationships § 614). Upon Dr. Collins’ death, Painless Medical, P.C. continued to exist (see Business Corporation Law § 1510), but was powerless to continue prosecuting its claims in this action until there was someone with authority who could authorize proceeding with this litigation (see Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). After her appointment by the Surrogate’s Court to act as the administrator of Dr. Collins’ estate, Ms. Val had the authority and power to, among other things, recover property belonging to Dr. Collins’ estate, prosecute an action to recover assets belonging to the estate, and settle claims for money owed to the estate (see e.g. 38 NY Jur 2d, Decedents’ Estates §§ 1442, 1513, 1521, 1532). It was not necessary that she be a member of the profession in which the professional corporation is authorized to practice, because Ms. Val was not acting in a professional capacity, i.e., as a director{**36 Misc 3d at 43} or officer of the professional corporation, but rather as an administrator, whose role is to preserve the value of, and prevent loss to, the estate.

The motion to restore was made within one year after the action had been “marked off” the trial calendar, and counsel’s supporting affirmation satisfactorily explained the reason that the action was “marked off” and showed a readiness to proceed to trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 8, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 8, 2010, reversed, without costs, defendant’s motion for summary judgment granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, defendant made a prima facie showing of entitlement to summary judgment dismissing the complaint by establishing its proper and timely mailing of the denial of claim forms at issue herein (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17-18 [2007]), and submitting competent medical evidence, including a sworn peer review report, that the diagnostic testing giving rise to plaintiff’s claims lacked medical necessity (see CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Plaintiff’s opposition consisting of an attorney’s affirmation — unaccompanied by any medical evidence or other competent proof — was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d at 88).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 25, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated August 10, 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 denying its motion for summary judgment dismissing the complaint.

The affidavits proffered by defendant in support of its motion for summary judgment were sufficient to demonstrate that defendant had timely denied the claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) on the ground of lack of medical necessity. Defendant also submitted, among other things, a peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Contrary to the determination of the District Court, defendant did not need to annex the medical records examined by the peer review doctor (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]; 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]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint is granted (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud [*2]Dists 2010]; 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]).

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), dated June 28, 2010. The order, insofar as appealed from, denied without prejudice plaintiffs’ motion for summary judgment and held the action in abeyance pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order, insofar as appealed from, is modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion to the District 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 plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed. As so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor had been injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied the motion and cross motion without prejudice and held the action in abeyance pending a determination by the Board. The court found that a question of fact exists as to whether the accident occurred during the course of the assignor’s employment, which issue must be resolved by the Board. Plaintiffs appeal from so much of the order as denied without [*2]prejudice their motion for summary judgment and held the action in abeyance.

Defendant’s proof was sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; 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. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiffs’ motion should not have been denied without prejudice. Instead, the District Court should determine plaintiffs’ motion 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.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 14, 2010. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branch [*2]of its motion seeking summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the District Court found that defendant had demonstrated that it had timely denied plaintiff’s claim, but denied defendant’s motion on the ground that the independent medical examination (IME) report annexed to defendant’s motion did not establish a lack of medical necessity for the supplies provided.

In support of its motion, defendant submitted, among other things, an affirmed IME 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 supplies provided (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]). Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]). As plaintiff has not challenged the District 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, 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 24, 2012