Innovative Chiropractic, P.C. v Travelers Ins. Co.

[*1] Innovative Chiropractic, P.C. v Travelers Ins. Co. 2009 NY Slip Op 52447(U) [25 Misc 3d 140(A)] Decided on December 1, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2008-1919 Q C.

Innovative Chiropractic, P.C. a/a/o JOSE OVALLES, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 5, 2008. The order, insofar as appealed from as limited by the brief, denied defendant's cross motion for summary judgment dismissing plaintiff's fourth and fifth causes of action.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing plaintiff's fifth cause of action is granted; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly denied its cross motion for summary judgment dismissing the fourth and fifth causes of action. The Civil Court held that an issue of fact exists as to the medical necessity of the services which are the subject of said causes of action.

The affidavits submitted by defendant were sufficient to establish that defendant's denial of claim form, which denied the claim seeking to recover the sum of $425.44 (plaintiff's fifth cause of action) on the ground of lack of medical necessity, was timely mailed in accordance with defendant's standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, with respect to said claim, defendant was not precluded from asserting its defense of lack of medical necessity.

In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff's $425.44 claim. In opposition thereto, plaintiff's treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff's opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant's cross motion for summary judgment dismissing plaintiff's fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

With respect to plaintiff's fourth cause of action seeking to recover the sum of $134.80 for services rendered from April 5 to April 17, 2006, defendant failed to establish that it had timely denied said claim. Accordingly, defendant's cross motion for summary judgment dismissing plaintiff's fourth cause of action was properly denied.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009