Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. 2010 NY Slip Op 50884(U) [27 Misc 3d 137(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-803 Q C.

Innovative Chiropractic, P.C. as assignee of Wanda Batista, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009, deemed from a judgment of the same court entered April 2, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 18, 2009 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $4,250.90.

ORDERED that the judgment is reversed without costs, the order entered March 18, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's treatments were not medically necessary, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant's motion and granted plaintiff's cross motion. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit submitted by defendant's senior litigation examiner sufficiently established [*2]that the denial of claim forms at issue were timely mailed pursuant to defendant's standard office practice or 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]). The sworn peer review report and the sworn independent medical examination report by defendant's chiropractors provided a factual basis and medical rationale for their determination that the treatments at issue were not medically necessary (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]). Consequently, defendant's moving papers made a prima facie showing that defendant was entitled to judgment as a matter of law and shifted the burden to plaintiff to raise a triable issue of fact.

The affidavit submitted by plaintiff in opposition to defendant's motion was insufficient to raise a triable issue of fact, as it merely consisted of a conclusory statement by the affiant, the doctor who had provided the treatments, that he reaffirmed his opinion that the disputed services were medically necessary. The affiant did not refer to, or discuss, the determination of defendant's chiropractors. Consequently, plaintiff failed to demonstrate the existence of an issue of fact with respect to medical necessity (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]), and defendant's motion for summary judgment should have been granted.

Accordingly, the judgment is reversed, the order entered March 18, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010