| Boai Zhong Yi Acupuncture Servs. P.C. a/a/o Mykhaylo Pistsov v Progressive Cas. Ins. Co. |
| Motion No: 2005-01567 QC |
| Slip Opinion No: 2008 NYSlipOp 79150(U) |
| Decided on July 30, 2008 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| BOAI ZHONG YI ACUPUNCTURE SERVICES P.C. a/a/o MYKHAYLO PISTSOV, Appellant, -against- PROGRESSIVE CASUALTY INSURANCE CO., Respondent. |
DECISION
Motion by defendant-respondent for leave to appeal to the Appellate Division deemed a motion for reargument granted, and upon reargument, the decision and order of this court entered November 28, 2006 in the above entitled action is recalled and vacated and the following decision and order is substituted therefor.
Appeal by plaintiff from an order of the Civil Court, City of New York, Queens County (Anna Culley, J.), entered March 10, 2005. The order denied plaintiff's motion for summary judgment, granted defendant's cross motion for summary judgment, and dismissed the complaint.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, inter alia, on the ground that defendant's NF-10 denial of claim form, which alleged the lack of medical necessity, failed to assert sufficient facts and a medical rationale based thereon to set forth, with the requisite specificity, a proper ground for the denial. The court denied the motion, and granted defendant's cross motion for summary judgment. Plaintiff appeals and we affirm. The form's reference to a negative peer review report as the basis of a denial sufficed to apprise plaintiff of the basis of defendant's determination that the medical services provided were medically unnecessary (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., ___ AD3d ____, 2007 NY Slip Op 03636 [2d Dept]). To the extent that A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) and related cases are to the contrary, they should no longer be followed (see 11 NYCRR 65-3.8 [b] [4]).
We also find defendant's peer review report sufficient to establish that the services rendered were not medically necessary, and as plaintiff failed, in response, to come forward with proof creating an issue of fact requiring a trial, the court below
properly granted defendant's cross motion for summary judgment (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).