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 (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 13, 2006, plaintiff was required “to serve full and complete responses” to defendant’s discovery demands by a specified date or be precluded from offering such evidence at trial.

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Consequently, defendant moved for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010

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 (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5520 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated December 13, 2006, plaintiff was required “to serve complete verified responses to [d]efendant’s [w]ritten [d]iscovery demands” by February 26, 2007. The stipulation further provided that “[f]ailure to comply [with] the terms [of the stipulation] will result in [p]laintiff being precluded from offering evidence or testimony at trial.”

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Over a year after plaintiff’s deadline to comply with the so-ordered stipulation had passed, defendant moved to dismiss plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, over a year after the deadline and after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which we deem plaintiff’s appeal to be taken (CPLR 5520 [c]).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented [*2]plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion seeking to dismiss the complaint. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010

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 May 21, 2008. 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, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

The affidavit of defendant’s personal injury protection litigation representative sufficiently set forth her personal knowledge of defendant’s business practices and procedures, and sufficiently described defendant’s “standard office practice or procedure designed to ensure that items are properly addressed and mailed” (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). There is no merit to plaintiff’s contention that the affidavit did not establish that the claim denial forms were mailed on the date on which the affiant stated.

Plaintiff also argues that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs), but rather to show that such denials were sent and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Furthermore, contrary to plaintiff’s contention, defendant was not required to lay a foundation for plaintiff’s own records. Defendant was only required to demonstrate, as it did, that it had timely and properly denied the claim forms which are the subject of the action.

Defendant established both that the notices which scheduled the EUOs of plaintiff’s assignor were properly mailed by the law firm retained by defendant to schedule and conduct [*2]said EUOs (see Residential Holding Corp., 286 AD2d at 680) and that the assignor failed to appear (see 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]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The fact that said law firm was contacted by the assignor’s attorney to reschedule or to confirm the EUOs indicates that the attorney had communicated with the assignor and was acting on her behalf (see generally St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]).

In view of the foregoing, and as the appearance of plaintiff’s assignor at an EUO was a condition precedent to defendant insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant’s motion for summary judgment dismissing the complaint was properly granted, and plaintiff’s cross motion was properly denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

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 August 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. As to the claims pertaining to assignors Eridania Hiraldo and Manuel Espinal, defendant contended that such claims had been made pursuant to an insurance policy which had been cancelled prior to the date of the accident and that therefore there was no coverage for such claims. As to the claim pertaining to assignor Milton Williams, who was involved in a separate accident, defendant asserted that it had timely denied the claim on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion, and the instant appeal ensued.

Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed. [*2]

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

[*1]

Supreme Court, Appellate Term, Second Department, June 3, 2010

APPEARANCES OF COUNSEL

Rubin, Fiorella & Friedman LLP, New York City (Joseph Federici and Harlan R. Schreiber of counsel), for appellant. Lewin, Goodman, Baglio, LLP, Melville (James E. Coughlin of counsel), for respondent.

{**28 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Ordered that the appeal from the decision is dismissed; and it is further, ordered that the judgment is reversed without costs and the matter is remitted to the Civil Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Bhutta Realty Corp. v Sangetti, 165 AD2d 852, 853 [1990] [invoking CPLR 3222]; Coccio v Parisi, 151 AD2d 817 [1989] [same]). The sole legal issue presented by the submission was whether it was ascertainable, within one year of the subject accident, “that further expenses may be incurred as a result of the injury” (Insurance Law § 5102 [a] [1]). The Civil Court concluded that, because plaintiff’s assignor had submitted an application for no-fault benefits within two months of the subject accident, the injuries that would possibly require treatment were ascertainable, with minimal investigation or a simple inquiry, within a year of the date of the accident. A judgment was entered in plaintiff’s favor.

Insurance Law § 5102 (a) (1) provides for the payment of necessary medical and other expenses “all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” The no-fault regulations state that “an insurer shall not be liable for the payment of medical and other benefits enumerated in section 5102(a)(1) if, during a period of one year from the date of the accident, no such expenses have been incurred by the applicant”{**28 Misc 3d at 57} (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [3]). No-fault expenses are incurred at the time treatment is received (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

While the parties stipulated that plaintiff’s assignor had been involved in an accident on [*2]December 12, 2005, that plaintiff’s assignor had submitted an application for no-fault benefits on February 1, 2006, that plaintiff had provided services between January 3, 2007 and May 14, 2007, that plaintiff had established its prima facie case, and that defendant had not received any no-fault claims on plaintiff’s assignor’s behalf until January 18, 2007, the stipulation is silent as to whether plaintiff’s assignor had received any relevant treatment from any provider, and therefore incurred any relevant expenses, within the one-year period following the accident. “It is well established that a stipulation of facts pursuant to CPLR 3222 must cover all points in dispute” (Bhutta Realty Corp., 165 AD2d at 853; see also CPLR 3222 [b] [5]; Coccio, 151 AD2d 817 [1989]). In our opinion, the absence of this relevant information precludes a determination of the action upon the submission of agreed upon facts. The submission should have been dismissed as inadequate, and the parties permitted to submit a more definite statement of facts or proceed to a trial on the disputed issue (see Bhutta Realty Corp., 165 AD2d 852 [1990]; Coccio, 151 AD2d 817 [1989]).

Golia, 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, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]D
ecision Date: May 24, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to (1) grant summary judgment to plaintiff Carnegie Hill Orthopedic Services, P.C., on the second and third causes of action seeking the principal sum of $9,118.76, and the Clerk is directed to judgment accordingly; and (2) grant partial summary judgment to plaintiffs on the issue of liability as to their first cause of action, and the matter remanded for apportionment between plaintiffs of the damages thereon; and, as so modified, order affirmed, with $10 costs.

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Although defendant does not dispute the total amount overdue on the first cause of action, we remand the matter to Civil Court for an apportionment of the amount owed to each respective plaintiff on that cause of action, since plaintiffs failed to establish such apportionment in their motion papers.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 17, 2010

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 April 23, 2009. The order denied plaintiff’s motion for leave to enter a default judgment.

ORDERED that the order is modified by providing that plaintiff’s motion is denied with leave to renew upon proper papers; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment based upon defendant’s failure to appear or answer the complaint or, in the alternative, for an order finding for all purposes in the action that plaintiff had established a prima facie case. The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.

In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff’s motion papers did not demonstrate a prima facie entitlement to judgment as a matter of law, the Civil Court properly denied the motion (see All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, plaintiff is not entitled to the alternative relief it sought, a finding for all purposes in the action that it had established its prima facie case (see e.g. B.Y., M.D., P.C. v Government Empls. Ins. Co., 26 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2010]). However, in the circumstances presented, we modify the order to provide that plaintiff’s motion is denied with leave to renew upon proper papers.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010

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 (Diane A. Lebedeff, J.), entered March 17, 2009, deemed from a judgment of the same court entered April 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $479.50.

ORDERED that the judgment is reversed without costs, the order entered March 17, 2009 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff’s commencement of a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because it was commenced before defendant had received responses to its outstanding verification requests. By order entered March 17, 2009, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from that order is deemed to be from the judgment which was [*2]subsequently entered (see CPLR 5501 [c]).

The affidavit of defendant’s claims representative established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff had failed to provide the requested verification. In opposition to defendant’s cross motion, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, under the circumstances presented, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]). We do not reach any other issue.

Accordingly, the judgment is reversed, the order entered March 17, 2009 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff’s commencement of a new action.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010

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 (Diane A. Lebedeff, J.), entered March 18, 2009, deemed from a judgment of the same court entered April 2, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 18, 2009 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,250.90.

ORDERED that the judgment is reversed without costs, the order entered March 18, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s treatments were not medically necessary, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s senior litigation examiner sufficiently established [*2]that the denial of claim forms at issue were timely mailed pursuant to defendant’s standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The sworn peer review report and the sworn independent medical examination report by defendant’s chiropractors provided a factual basis and medical rationale for their determination that the treatments at issue were not medically necessary (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]). Consequently, defendant’s moving papers made a prima facie showing that defendant was entitled to judgment as a matter of law and shifted the burden to plaintiff to raise a triable issue of fact.

The affidavit submitted by plaintiff in opposition to defendant’s motion was insufficient to raise a triable issue of fact, as it merely consisted of a conclusory statement by the affiant, the doctor who had provided the treatments, that he reaffirmed his opinion that the disputed services were medically necessary. The affiant did not refer to, or discuss, the determination of defendant’s chiropractors. Consequently, plaintiff failed to demonstrate the existence of an issue of fact with respect to medical necessity (see 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]), and defendant’s motion for summary judgment should have been granted.

Accordingly, the judgment is reversed, the order entered March 18, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010