Appeal from an amended order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated July 17, 2008. The amended order granted plaintiff's motion for summary judgment.

ORDERED that the amended order is reversed without costs and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that the services provided were not medically necessary. The District Court granted plaintiff's motion, and this appeal ensued.

While defendant argues that the affidavit of plaintiff's billing collection supervisor was insufficient to establish plaintiff's prima facie case, we do not pass on the propriety of the determination of the District Court with respect thereto as defendant raises this issue for the first time on appeal (see Westchester Neurodiagnostic, P.C. v Allstate Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51385[U] [App Term, 9th & 10th Jud Dists 2009]; Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). [*2]

In support of its motion, plaintiff submitted defendant's affirmed peer review reports and argued that plaintiff was entitled to summary judgment because the peer review reports did not adequately set forth a medical justification to support the peer review doctor's conclusions that the services at issue were not medically necessary. In opposition to plaintiff's motion, defendant established that its denial of claim forms, which relied upon the peer review reports, were timely (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the peer review reports set forth a sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, plaintiff's motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: May 10, 2010