Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 50401(U) Decided on March 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2438 K C.

Crotona Heights Medical, P.C. as Assignee of KENIA GIL, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 30, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]) the claims at issue on the ground of lack of medical necessity. Defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer's [*2]determination that there was a lack of medical necessity for the services rendered (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]). In opposition, plaintiff did not raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff's assignor was injured as documented in her medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary (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 was not required to demonstrate that the records fell within an exception to the rule against hearsay (id.). Thus, the Civil Court should have granted defendant's cross motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012