Opinion
No. 2013–1791 Q C.
06-03-2016
THER–OX HOME CARE, INC., as Assignee of Lannie Ambrose, Respondent, v. PRAETORIAN INSURANCE COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order, insofar as appealed from and 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, with $30 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, the Civil Court denied defendant's motion for summary judgment dismissing the complaint but, in effect, limited the issues for trial pursuant to CPLR 3212(g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.
In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the supplies at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] ). In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and 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 Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v. American Tr. Ins. Co., 18 Misc.3d 128[A], 2007 N.Y. Slip Op 52455[U] [App Term, 2d Dept, 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 Dept, 2d & 11th Jud Dists 2007] ).
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.