Opinion
2009-661 Q C.
Decided March 10, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 10, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's cross motion seeking summary judgment dismissing the third and fifth causes of action.
ORDERED that the order, insofar as appealed from, is reversed without costs and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's third and fifth causes of action are granted.
PRESENT: RIOS, J.P., PESCE and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, arguing, among other things, that there was a lack of medical necessity for the services at issue in plaintiff's third and fifth causes of action, and that plaintiff was not entitled to recover on the claim at issue in plaintiff's first cause of action based on the Worker's Compensation Fee Schedule. Defendant appeals, as limited by the brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing plaintiff's third and fifth causes of action.
The affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practice or procedure ( see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d 11th Jud Dists 2007]). Furthermore, defendant submitted an affirmation by the doctor who performed the independent medical examination as well as a copy of the independent medical examination report. Said documents established, prima facie, that with respect to the services at issue in plaintiff's third and fifth causes of action, there was no medical necessity ( see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. , 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d 11th Jud Dists 2007]), which evidence was unrebutted. Accordingly, the branches of defendant's cross motion seeking summary judgment dismissing said causes of action should have been granted.
Rios, J.P., Pesce and Steinhardt, JJ., concur.