Opinion
No. 2011–442NC.
2012-08-7
BROWNSVILLE ADVANCE MEDICAL, P.C. as Assignee of Rhonda Francis Munro, Respondent, v. KEMPER INDEPENDENCE INSURANCE COMPANY, Appellant.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 7, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court denying defendant's motion for summary judgment dismissing the complaint.
Defendant sufficiently established that the denial of claim form, which denied plaintiff's claims on the ground of lack of medical necessity, had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Total Equip., LLC v. Praetorian Ins. Co., 34 Misc.3d 141[A], 2012 N.Y. Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; All County, LLC v. Unitrin Advantage Ins. Co., 31 Misc.3d 134[A], 2011 N.Y. Slip Op 50621[U] [App Term, 9th & 10th Jud Dists 2011] ). In addition, annexed to defendant's motion papers was an affirmed independent medical examination report that set forth a sufficient factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services provided ( see Elmont Open MRI & Diagnostic Radiology, P.C. v. State Farm Ins. Co., 27 Misc.3d 136[A], 2010 N.Y. Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v. Progressive Cas. Ins. Co., 26 Misc.3d 135[A], 2010 N.Y. Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010] ), which shifted the burden to plaintiff to rebut defendant's prima facie showing. In opposition to the motion, plaintiff failed to submit an affidavit or affirmation from a medical professional ( see Total Equip., LLC v. Praetorian Ins. Co., 34 Misc.3d 145 [A], 2012 N.Y. Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]; Total Equip., LLC, 34 Misc.3d 141[A], 2012 N.Y. Slip Op 50078[U] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.