Alrof, Inc. v Praetorian Ins. Co.

[*1] Alrof, Inc. v Praetorian Ins. Co. 2012 NY Slip Op 51445(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., PESCE and RIOS, JJ
2010-3212 Q C.

Alrof, Inc. as Assignee of ANDROSKY LABOISSIERE, Respondent,

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 18, 2010. The order, insofar as appealed from, denied the branch of defendant's cross motion seeking summary judgment dismissing the second through fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's cross motion seeking summary judgment dismissing the second through fifth causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found, among other things, that plaintiff and defendant had established their prima facie cases with respect to the second through fifth causes of action 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 the branch of its cross motion [*2]seeking summary judgment dismissing the second through fifth causes of action.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies provided. In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (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]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's cross motion seeking summary judgment dismissing the second through fifth causes of action is granted.

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