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 (Kenneth P. Sherman, J.), entered November 24, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order as denied its cross motion for summary judgment.

Although defendant denied the claims on the ground that plaintiff’s assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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]). As a result, defendant was not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011

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 (Kathryn E. Freed, J.), entered December 4, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 which granted defendant’s motion for summary judgment dismissing the complaint as premature, based upon outstanding verification requests, and denied plaintiff’s cross motion for summary judgment.

The affidavit of defendant’s litigation representative submitted in support of defendant’s motion for summary judgment was sufficient to establish that defendant had timely mailed requests and follow-up requests for verification 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]). Since plaintiff did not respond to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the action as premature was properly granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; 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]; Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated January 29, 2009, deemed from a judgment of the same court entered April 19, 2010 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on December 23, 1999 were medically necessary. After a nonjury trial, the District Court issued a decision awarding judgment in defendant’s favor. Plaintiff appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

At trial, defendant’s doctor testified that, in his opinion, the medical services provided by plaintiff were not medically necessary. His peer review report concluding that there was a lack of medical necessity was also entered into evidence. This evidence was sufficient to establish that the services rendered were not medically necessary. Plaintiff called no witnesses in rebuttal. [*2]In view of the foregoing, the judgment dismissing the complaint is affirmed (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]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 08, 2011

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 January 11, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 11, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie its proper mailing of the notices of the independent medical examinations (IMEs) and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 06, 2011

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 (Wavny Toussaint, J.), entered October 30, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant established that its denial of claim forms were 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]). With regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant’s claims examiner stated in his affidavit submitted in opposition to plaintiff’s motion that he had denied this claim based upon the failure [*2]of plaintiff’s assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff’s assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant’s belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule, we find that an issue of fact exists with respect thereto (see 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]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant denied plaintiff’s claim dated September 11, 2006 based upon plaintiff’s assignor’s failure to appear for duly scheduled IMEs. Defendant demonstrated that it had timely mailed the IME requests, through the submission of an affidavit of an employee of the entity which scheduled the IMEs on behalf of defendant, who stated that she had personally mailed the IME requests on particular dates (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit and an affirmation, both of which were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant was entitled to summary judgment dismissing this claim (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 05, 2011

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 (Margaret Pui Yee Chan, J.), entered October 23, 2009. 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 modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order denying its motion for summary judgment dismissing
the complaint and granting plaintiff’s cross motion for summary judgment, arguing that it had properly reimbursed plaintiff the amount to which plaintiff was entitled for the acupuncture services it had rendered, by using the workers’ compensation medical fee schedule.

In support of its motion, defendant submitted an affidavit by an employee of its claims division, which was sufficient to establish that the verification requests and denial of claim 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]), but which was insufficient to establish defendant’s contention that the amounts charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule. The applicable portion of the fee schedule was not [*2]annexed to defendant’s papers. While courts are permitted to take judicial notice of the workers’ compensation fee schedule (see LVOV Acupuncture, P.C. v Geico Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]; see also Kingsbrook Jewish Med. Ctr.v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), a party seeking to have the court take judicial notice should provide the court with sufficient information to permit the court to take judicial notice and should advise the adverse party of the request for judicial notice (CPLR 4511 [b]). Inasmuch as that was not done here, we decline to take judicial notice of the workers’ compensation fee schedule in this case. Accordingly, with respect to the acupuncture services rendered by its licensed acupuncturist for the acupuncture sessions from August 7, 2006 through September 21, 2006, the Civil Court properly denied defendant’s motion for summary judgment. Likewise, the Civil Court properly denied defendant’s motion for summary judgment to the extent that it sought dismissal of plaintiff’s claim for the initial acupuncture visit of August 4, 2006, as defendant did not proffer sufficient evidence to warrant the dismissal thereof (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]).

Plaintiff, however, was not entitled to summary judgment on its cross motion, as it failed to establish that there was an untimely denial or that the denial was conclusory, vague or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78AD3d 1168 [2010]). Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

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 (Sylvia G. Ash, J.), dated January 21, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 granting defendant’s motion for summary judgment
dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Defendant demonstrated that it had timely mailed the NF-10 denial of claim forms based upon its standard office practices and procedures (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]). Moreover, defendant’s affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s conclusion that there was a lack of medical necessity for the subject medical supplies. Plaintiff challenges defendant’s peer reviewer’s reliance on various medical records. Some of the records were prepared by plaintiff and, accordingly, plaintiff may not challenge the reliability of those records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). In addition, contrary to plaintiff’s assertion, the fact that defendant’s [*2]peer reviewer took into consideration medical records of other providers in formulating his opinion does not render the peer review report inadmissible (see 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]).

Inasmuch as plaintiff failed to rebut defendant’s showing, defendant was 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]; 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]). We note that plaintiff’s remaining contentions are either unpreserved or lack merit.

Accordingly, the order is affirmed.

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

Rios, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and RIOS, JJ.
PARSONS MEDICAL SUPPLY, INC.
as Assignee of MARIE JOSEPH,

Appellant,

-against-

NO. 2010-1201 K C

DECIDED
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, [*3]

Respondent.

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant’s motion for summary judgment is denied in the following memorandum:

The affidavit of defendant’s “litigation representative” in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a “pick up” bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant’s motion for summary judgment is denied.

Plaintiff’s cross motion was properly denied. The attorney’s affirmation was insufficient to establish plaintiff’s entitlement to judgment as a matter of law.
Decision Date: November 30, 2011

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 (Johnny Lee Baynes, J.), entered September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see 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]; see also 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]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

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 (Alice Fisher Rubin, J.), entered April 29, 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.

In support of its motion, defendant submitted, among other things, a sworn peer review report which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that such services were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s motion for summary judgment dismissing the complaint 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011