Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co.
Annotate this CaseDecided on July 24, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., JJ
570044/12.
Hillside Surgicare Diagnostic and Treatment Center, LLC d/b/a Hillside Surgicare f/k/a Hillside Manor Comp. Care, a/a/o Christina Centeno-Guity, Plaintiff-Respondent, - -
against
Utica Mutual Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered November 7, 2011, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Mitchell J. Danziger, J.), entered November 7, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, an orthopedist's peer review report, setting forth in some detail a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff's claim for first-party no-fault benefits lacked medical necessity. Notably, defendant's peer reviewer emphasized, among other factors, that his review of the assignor's medical records showed "no findings of instability" or "positive ... orthopedic signs" in connection with the assignor's claimed shoulder injuries and that, although the arthoscopic procedure undertaken by plaintiff related to its assignor's left shoulder, the assignor's "chief complaint" at her initial, post-accident consultation involved her right shoulder. Plaintiff's opposing submission, consisting solely of an attorney's affirmation together with unsworn, and thus inadmissible medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to withstand summary judgment.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 24, 2012
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