|Pan Chiropractic, P.C. v Mercury Ins. Co.|
|2009 NY Slip Op 51495(U) [24 Misc 3d 136(A)]|
|Decided on July 9, 2009|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A.
Lebedeff, J.), dated March 24, 2008. The order, insofar as appealed from, denied defendant's
cross motion for summary judgment dismissing the complaint.
Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint, finding that there was a question of fact as to medical necessity. Defendant appeals from so much of the order as denied its cross motion.
Contrary to plaintiff's contention, the affidavit of defendant's claims representative sufficiently established the timely mailing of the denial of claim form, which had denied plaintiff's claim based upon a peer review report, since the affidavit described in detail, on the affiant's personal knowledge, defendant's standard office practice or procedure used to ensure that the denial was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The papers submitted in support of defendant's cross motion for summary judgment dismissing the complaint include the sworn peer review report by defendant's doctor, which sets forth a factual basis and medical rationale for the doctor's opinion that the medical services provided were medically unnecessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d [*2]142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant's papers contain the medical records and reports prepared by the assignor's various providers, which documents were relied upon by defendant's doctor to establish that there was a lack of medical necessity for the services at issue. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see e.g. Franchini v Palmieri, 1 NY3d 536 ; Diaz v Anasco, 38 AD3d 295 [1st Dept 2007]; Tuna v Babendererde, 32 AD3d 574 [3d Dept 2006]) and shifted the burden to plaintiff, which stands in the shoes of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 ), to raise a triable issue of fact in opposition to defendant's cross motion.
The affidavit submitted by plaintiff in opposition was insufficient as it merely consisted of a
conclusory statement by the affiant that he disagreed with the opinion of defendant s peer review
doctor that there was no medical necessity for the services rendered. The affiant did not
meaningfully refer to, or discuss, the determination of defendant's doctor. Plaintiff's remaining
contentions similarly lack merit. Accordingly, the order, insofar as appealed from, is reversed
and defendant's cross motion for summary judgment dismissing the complaint is granted (see 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]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009