Queens Med. Supply, Inc. v Tri State Consumer Ins. Co.

[*1] Queens Med. Supply, Inc. v Tri State Consumer Ins. Co. 2012 NY Slip Op 50414(U) Decided on March 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-1816 K C.

Queens Medical Supply, Inc. as Assignee of VYACHESLAV DEYKIN and ALEKSEY DEYKIN, Appellant,

against

Tri State Consumer Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered April 1, 2010. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, the affirmed peer review reports set forth the factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the supplies at issue. Defendant's showing that the supplies were not medically necessary was not rebutted by plaintiff. Thus, plaintiff's motion for summary judgment was properly denied and defendant's cross motion for summary judgment dismissing the complaint was properly 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, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op [*2]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]; see also 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]).

Accordingly, the order of the Civil Court is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012