Hempstead Turnpike Open Mri & Imaging v Progressive Ins. Co.

[*1] Hempstead Turnpike Open Mri & Imaging v Progressive Ins. Co. 2006 NY Slip Op 51287(U) [12 Misc 3d 137(A)] Decided on July 3, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 3, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-946 N C.

Hempstead Turnpike Open Mri and Imaging As Assignee of Jason Antonio, Appellant,

against

Progressive Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Alfred D. Cooper, Sr., J.), entered April 1, 2005. The order, insofar as appealed from, denied plaintiff's cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover overdue first-party no-fault benefits for a CAT scan plaintiff provided to its assignor, the court below denied plaintiff's cross motion for summary judgment on the ground that defendant's affirmed peer review report established a triable issue of the procedure's medical necessity. Plaintiff appeals from that determination and we affirm.

The peer reviewer's conclusion, that the available medical documentation, which included several examination and test reports, did not establish the medical necessity of a CAT scan of an area which another provider had already examined, inter alia, via an MRI, set forth "a factual basis and medical rationale" (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 97 [App Term, 9th & 10th Jud Dists 2004]) sufficient to raise a triable issue of the procedure's medical necessity. We note that the reviewer's mere reference to unavailable reports does not require the inference that the reviewer considered the information in his possession insufficient to permit a medical necessity determination and that recourse to the verification process was necessary to amplify the record (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A],
2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]; cf. All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 3, 2006