Richmond Radiology, P.C. v Travelers Ins. Co.

[*1] Richmond Radiology, P.C. v Travelers Ins. Co. 2010 NY Slip Op 51964(U) [29 Misc 3d 134(A)] Decided on November 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1780 Q C.

Richmond Radiology, P.C. as Assignee of RUTHIE JUSINO, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 1, 2009, deemed from a judgment of the same court, entered August 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 1, 2009 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

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 on the ground of lack of medical necessity. The Civil Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment. Plaintiff's appeal ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to plaintiff's contention, the affidavit and peer review report of defendant's chiropractor set forth a factual basis and medical rationale for the chiropractor's determination that there was a lack of medical necessity for the testing performed on plaintiff's assignor. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, 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]), the Civil Court properly granted defendant's cross motion for summary judgment (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 American 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 judgment is affirmed. [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010