Martin Plutno v Travelers Ins. Co.

[*1] Martin Plutno v Travelers Ins. Co. 2014 NY Slip Op 50412(U) Decided on March 11, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-130 Q C.

Martin Plutno, D.C. as Assignee of DONNA BARONE, Appellant,

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 15, 2010. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 through August 25, 2007; as so modified, 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 of the Civil Court which granted defendant's motion for summary judgment.

Contrary to plaintiff's contention, the affidavits submitted in support of defendant's motion for summary judgment were sufficient to establish 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]) plaintiff's claims either pursuant to the workers' compensation fee schedule or on the ground of lack of medical necessity. The affidavit submitted by defendant's employee established that, as to plaintiff's claim for dates of service August 3, 2007 through August 25, 2007 seeking the sum of $235.90, defendant had paid $134.80 thereof and had denied the remaining $101.10 on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers' compensation fee schedule. With respect to plaintiff's remaining claims, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor's conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint.

In opposition to defendant's motion, plaintiff failed to raise a triable issue of fact with regard to the unpaid portion of the claim for dates of service August 3, 2007— August 25, 2007. Thus, defendant is entitled to summary judgment with respect thereto. However, plaintiff did submit, among other things, a letter of medical necessity sworn to by plaintiff's treating chiropractor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is granted only with respect to so much of the complaint as sought to recover upon the unpaid portion of the claim for dates of service August 3, 2007 [*2]through August 25, 2007.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014