Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co.

[*1] Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co. 2010 NY Slip Op 52015(U) [29 Misc 3d 136(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 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
2009-1440 RI C.

Richmond Pain Management, P.C. as Assignee of JUAN RODRIGUEZ, Respondent,

against

Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered May 15, 2009. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. This appeal by defendant ensued.

The affidavits submitted by defendant were sufficient to establish that defendant's denial of claim forms, which denied the claims at issue of the ground of lack of medical necessity, had been timely mailed in accordance with standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Defendant also submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the doctor's conclusion that there was a lack of medical necessity for the testing at issue. As the affidavit from plaintiff's health care practitioner, included in defendant's motion papers, 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]), defendant's motion for summary judgment should have been granted (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, oftlineP.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]). [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 2010