All Points Med. Supply, Inc. v. Clarendon Ins. Co.

Full title: All Points Medical Supply, Inc. as Assignee of YVETTE HERNANDEZ…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Dec 19, 2011

2011 N.Y. Slip Op. 52292 (N.Y. App. Term 2011)

Opinion

2010-1093 Q C

12-19-2011

All Points Medical Supply, Inc. as Assignee of YVETTE HERNANDEZ, Respondent, v. Clarendon Insurance Company, Appellant.

PESCE

PRESENT: : , P.J., WESTON and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 24, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion for summary judgment seeking the dismissal of the first through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant's motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied the branches of its motion for summary judgment seeking the dismissal of the first through fourth causes of action.

In support of its motion, defendant submitted, among other things, affirmed peer review reports which set forth the factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the supplies at issue. Defendant's showing that the supplies 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, the branches of defendant's motion for summary judgment seeking the dismissal of plaintiff's first through fourth causes of action are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant's motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

Pesce, P.J., Weston and Rios, JJ., concur.