Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Throgs Neck Multicare, P.C. v State Farm Mut. Auto. Ins. Co. 2015 NY Slip Op 51756(U) Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1569 S C

Throgs Neck Multicare, P.C. as Assignee of Esther Arias, Appellant, -

against

State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 26, 2014. The order, insofar as appealed from as limited by the brief, granted the branch of defendant's amended motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied solely on the ground of lack of medical necessity.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied all of the claims at issue for lack of medical necessity, based on an affirmed report of an independent medical examination (IME). Defendant also asserted that some of the services at issue had been timely and properly denied on the additional ground that the claims were in excess of the workers' compensation fee schedule. The District Court found that defendant had established both grounds, and granted defendant's motion. On appeal, plaintiff does not address defendant's fee schedule defense and, thus, in effect, plaintiff fails to challenge the dismissal of the claims which had been denied on this ground.

Contrary to plaintiff's sole contention on appeal, the opposing affirmation of plaintiff's doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report. Therefore, plaintiff failed to raise a triable issue of fact as to medical necessity (see e.g. Bronx Mega Care Med, PLLC v Federal Ins. Co., 48 Misc 3d 132[A], 2015 NY Slip Op 51060[U] [App Term, 9th & 10th Jud Dists 2015]; Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]; 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: November 30, 2015