SAL Med., P.C. v Clarendon Natl. Ins. Co.

[*1] SAL Med., P.C. v Clarendon Natl. Ins. Co. 2015 NY Slip Op 51449(U) Decided on September 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2010-3354 K C

SAL Medical, P.C. as Assignee of Dora Khodzhieva, Respondent, -

against

Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered August 12, 2010. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

The papers submitted by defendant in support of its motion were sufficient to establish that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim forms at issue, which denied plaintiff's claims on the ground of lack of medical necessity. Moreover, defendant submitted the properly affirmed report of an independent medical examination (IME) performed on plaintiff's assignor, as well as two affirmed peer review reports, all of which set forth a factual basis and medical rationale for the determination of defendant's doctors that there was no medical necessity for the services rendered to plaintiff's assignor. The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant's motion by this defect in form (see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008 [2008]; see also Berkman Bottger & Rodd, LLP v Moriarty, 58 AD3d 539 [2009]).

Defendant's prima facie showing that the services rendered by plaintiff were not medically necessary was unrebutted by plaintiff. Consequently, defendant was entitled to summary judgment dismissing the complaint (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]).

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: September 30, 2015