A.B. Med. Servs. PLLC v Integon Natl. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Integon Natl. Ins. Co. 2005 NYSlipOp 50643(U) Decided on April 29, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-944 K C

A.B. Medical Services PLLC a/a/o Martine Dautruche, Appellant,

against

Integon National Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 4, 2004, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff's motion is granted to the extent of awarding it partial summary judgment in the principal sum of $1,999.12 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider sued to recover $1,972.08 for a test performed on August 20, 2001 and $1,999.12 for a test performed on August 27, 2001. Defendant timely denied both claims based on peer reviews.

Plaintiff moved for summary judgment as to both claims. With regard to the test performed by plaintiff on August 20, 2001, the affirmed peer reviewer's uncontroverted statement submitted in opposition to the motion asserted, inter alia, that there were no interim notes between the time of the initial evaluation, one day after the accident, and the performance of the test. Accordingly, the peer reviewer's conclusion that there has been no showing that said test was medically necessary raises a triable issue of fact as to its medical necessity. However, there was an evaluation before the second test was performed by plaintiff on August 27, 2001, the report of which was apparently provided by plaintiff to defendant but was not given to the peer reviewer by defendant. In his affirmed statement submitted in opposition to the motion, the peer reviewer recommended denial of the August 27, 2001 claim citing the same reason given in the [*2]prior peer review. Since there was such an evaluation prior to plaintiff administering the second test on August 27, 2001, the defendant's basis for denial as set forth in the peer review lacks merit in fact and thus plaintiff's motion for summary judgment as to this claim should be granted.
Decision Date: April 29, 2005