Eagle Surgical Supply, Inc v Mercury Cas. Co.

[*1] Eagle Surgical Supply, Inc v Mercury Cas. Co. 2012 NY Slip Op 51286(U) Decided on June 28, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2009-1421 K C.

Eagle Surgical Supply, Inc. as Assignee of ALAN FENELON, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 1, 2009. The order, insofar as appealed from, denied defendant's 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 moved for summary judgment dismissing the complaint and plaintiff opposed the motion. The Civil Court found that defendant had established its prima facie case 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 motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, an affirmed peer review report, which did not establish a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the supplies provided inasmuch as the doctor merely asserted that he had insufficient documentation and information (see Midisland Med., PLLC v Allstate Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51861[U] [App Term, 2d & 11th Jud Dists 2008]). Moreover, defendant did not demonstrate that it had sought to obtain such information by means of a verification request. Thus, defendant failed to establish its [*2]entitlement to summary judgment dismissing the complaint as a matter of law (see id.; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]).

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

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012