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 (Terence C. O’Connor, J.), entered March 22, 2010, deemed from a judgment of the same court entered April 9, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 22, 2010 order granting defendant’s motion to dismiss the complaint, 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 Civil Court, by order entered March 22, 2010, granted defendant’s motion to dismiss the complaint, pursuant to CPLR 3211 (a) (7), on the ground that plaintiff’s failure to appear for two examinations before trial (EUOs) violated a condition of coverage and bars the action (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff appeals from the order. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s sole contention on appeal is that defendant’s motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument is without merit because the mandatory personal injury endorsement, effective April 5, 2002, contains a provision providing for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]) and the underlying motor vehicle accident occurred in 2008. Thus, the applicable automobile insurance policy necessarily would have contained such a provision (see Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]). Even if the insurance policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103 [h]; Dover
Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]). Consequently, defendant’s motion to dismiss the complaint was properly granted (see Dover Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]; see also Eagle Chiropractic, P.C., 19 Misc 3d 129[A], 2008 [*2]NY Slip Op 50525[U]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 28, 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 (Peter Paul Sweeney, J.), entered November 5, 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 reversed, without 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 from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s claims division employee established that defendant had timely mailed its denial of claim form, which denied the claim on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident, in accordance with its 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]). The affidavit further stated that defendant had first learned of the accident when it had received an NF-2 form, thereby demonstrating that defendant first learned of the accident more than 30 days after it had occurred. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to receiving the NF-2 form. Despite being informed by the denial of claim form that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (Insurance Department Regulation [11 NYCRR] § 65-1.1; § 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 28, 2011

[*1]

Supreme Court, Appellate Term, Second Department, October 28, 2011

APPEARANCES OF COUNSEL

Khavinson & Associates, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant. McDonnell & Adels, P.L.L.C., Garden City (James J. Cleary, Jr., of counsel), for respondent.

{**33 Misc 3d at 65} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands is granted to the extent of compelling plaintiff to provide the documents sought in items 19, 20, and 21 of defendant’s notice to produce and in interrogatory 11 (c) within 60 days of the date of this decision and order, and by further compelling plaintiff to produce its owner, John McGee, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; 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 appeals from so much of an order as granted defendant’s motion to strike the action from the trial{**33 Misc 3d at 66} calendar and compel plaintiff to respond to defendant’s discovery demands and to produce its owner for an examination before trial (EBT).

It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant’s motion to strike the action from the trial calendar was untimely, under the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing [*2]laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

The record indicates that plaintiff objected to producing items 19 through 21 of defendant’s notice to produce, which sought plaintiff’s bank statements and canceled checks (item 19), plaintiff’s federal and state tax returns including attachments and schedules (item 20), and plaintiff’s payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff’s objection to the foregoing demands lacked merit. Defendant has shown that plaintiff’s bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns and payroll tax filings (see CPLR 3101 [a]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d{**33 Misc 3d at 67} 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff’s responses to the remainder of defendant’s interrogatories and defendant’s notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.

In light of the foregoing and the misstatements of material facts contained within plaintiff’s certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

In support of its cross motion, defendant submitted, among other things, a sworn independent medical examination (IME) report which set forth the examining chiropractor’s determination that there was a lack of medical necessity for the services at issue. The affidavit from plaintiff’s chiropractor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claims, a finding which plaintiff does not dispute, the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 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. [*2]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 cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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, Queens County (Jodi Orlow, J.), entered May 17, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, in effect, denied both motions, holding, pursuant to CPLR 3212 (g), among other things, that the sole issue to be determined at trial was the medical necessity of the services rendered. This appeal by plaintiff ensued.

The Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion as plaintiff submitted opposition to the cross motion and failed to demonstrate that it had suffered any prejudice as a result of defendant’s delay (see A.M. Med. Servs., P.C. v GEICO Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51029 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).

In papers submitted in support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant included an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that there was a lack of medical necessity for the services rendered (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d & 11th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff’s motion.

We decline defendant’s request that we search the record and grant defendant summary judgment.

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

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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, Richmond County (Katherine A. Levine, J.), dated April 17, 2008. 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, without 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 as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that such supplies 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 cross motion for summary judgment dismissing the complaint should have been granted (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]; 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]). Plaintiff’s contention that the order denying defendant’s cross motion for summary judgment should be affirmed since plaintiff was not in possession of the documents that the peer reviewer relied upon is without merit (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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 (Reginald A. Boddie, J.), entered March 18, 2010. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion for summary judgment seeking the dismissal of plaintiff’s claim in the amount of $1,546.20.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion for summary judgment seeking the dismissal of plaintiff’s claim in the amount of $1,546.20 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 as denied the branch of its motion for summary judgment seeking the dismissal of plaintiff’s claim in the amount of $1,546.20.

In support of its motion, defendant submitted, among other things, an affirmed peer review report 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. 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, the branch of defendant’s motion for summary judgment seeking the dismissal of plaintiff’s claim in the amount of $1,546.20 should have been granted (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]; 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 [*2]
defendant’s motion for summary judgment seeking the dismissal of plaintiff’s claim in the amount of $1,546.20 is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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, Queens County (Judi Orlow, J.), entered March 11, 2010, deemed from a judgment of the same court entered April 2, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 11, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint, awarded defendant the sum of $60.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. We deem plaintiff’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff’s sole argument on appeal is that defendant did not establish that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). However, a review of the record reveals that the affidavit of defendant’s investigator, who was responsible for conducting the EUOs, established that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65—1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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, Queens County (William A. Viscovich, J.), entered February 11, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to strike plaintiff’s notice of trial to the extent of compelling plaintiff to produce certain tax documents.

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 defendant’s motion to strike plaintiff’s notice of trial to the extent of compelling plaintiff to produce certain tax documents.

Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). As defendant’s motion papers were sufficient to establish that special circumstances exist which warrant disclosure of plaintiff’s tax documents at issue (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]), the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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 (Alice Fisher Rubin, J.), entered February 2, 2010. 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, without 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and cross motion, and found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that such supplies 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 cross 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, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 26, 2011