Patchogue Physical Therapy, P.C. v Clarendon Natl. Ins. Co.

[*1] Patchogue Physical Therapy, P.C. v Clarendon Natl. Ins. Co. 2012 NY Slip Op 51444(U) Decided on July 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3209 Q C.

Patchogue Physical Therapy, P.C. as Assignee of DOMINGA VALLE, Respondent,

against

Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court found that the evidence established plaintiff's prima facie case and that "defendant established timely denials. The sole issue for trial is medical necessity." Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered. Defendant's showing that the services were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil [*2]Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is 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 Amercian 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 motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 2012