Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co.

[*1] Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. 2012 NY Slip Op 50149(U) Decided on January 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1957 K C. x

Ortho-Med Surgical Supply, Inc. as Assignee of KENNY INGRAM, Respondent,

against

Progressive Casualty Insurance Co., Appellant. x

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 13, 2009. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $498.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals as limited by the brief from so much of an order as denied the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff's claim for $498.

Defendant established that it had timely denied the claim for $498 (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant's peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to 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]; [*2]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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant's peer reviewer, and that these documents were needed in order to oppose defendant's motion (see CPLR 3212 [f]), plaintiff "failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact" (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition, plaintiff submitted only an affirmation from its counsel and 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]). Accordingly, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 should have been granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012