Innovative MR Imaging, P.C. v Praetorian Ins. Co.

[*1] Innovative MR Imaging, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51402(U) Decided on September 16, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-387 Q C

Innovative MR Imaging, P.C. as Assignee of Jose Mateo Perez, Respondent,

against

Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered December 7, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied both the motion and the cross motion, but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), stating that "the only issue for trial shall be medical necessity." As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer's determination that there was a lack of medical necessity for the services at issue. In opposition to defendant's motion, plaintiff submitted two letters of medical necessity. However, as neither letter of medical necessity was sworn or even signed, they were of no probative value (see Rivers v Birnbaum, 102 AD3d 26, 45 [2012]). As a result, defendant's prima facie showing that the services were not medically necessary was unrebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 16, 2015