Opinion
2012-07-18
PATCHOGUE PHYSICAL THERAPY, P.C. as Assignee of Dominga Valle, Respondent, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint. The Civil Court found that the evidence established plaintiff's prima facie case and that “defendant established timely denials. The sole issue for trial is medical necessity.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered. Defendant's showing that the services were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v. Amercian Tr. Ins. Co., 18 Misc.3d 128[A], 2007 N.Y. Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ).
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.