Opinion
2017–01153 Index No. 605379/15
05-15-2019
ALLSTATE INSURANCE COMPANY, Appellant, v. BUFFALO NEUROSURGERY GROUP, etc., Respondent.
Peter C. Merani, P.C., New York, N.Y. (Eric M. Wahrburg of counsel), for appellant.
Peter C. Merani, P.C., New York, N.Y. (Eric M. Wahrburg of counsel), for appellant.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that the amount of no-fault insurance benefits sought by the defendant was not in accordance with the workers' compensation fee schedule, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof searching the record and awarding summary judgment to the defendant; as so modified, the order is affirmed, with costs payable to the plaintiff.
This action pursuant to Insurance Law § 5106(c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group. The defendant, as assignee of Krull, submitted a claim to the plaintiff insurer for no-fault insurance benefits for the surgery and related care. The plaintiff denied the claim. The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the principal sum of $ 11,352.46, plus interest and attorney's fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.
On August 19, 2015, the plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of the defendant's claims for no-fault insurance benefits. The plaintiff then moved for summary judgment on the complaint. In an order dated December 9, 2016, the Supreme Court denied the motion and, upon searching the record, awarded summary judgment to the defendant, concluding that the master arbitrator had properly affirmed the award of benefits to the defendant in the principal sum of $ 11,352.46, plus interest and attorney's fees. The plaintiff appeals.
Insurance Law § 5106(c) permits a de novo adjudication of a no-fault insurance claim where the master arbitrator's award is $ 5,000 or greater, exclusive of interest and attorney's fees (see 11 NYCRR 65–4.10 [h][i][ii]; Matter of Greenberg [Ryder Truck Rental], 70 N.Y.2d 573, 577, 523 N.Y.S.2d 67, 517 N.E.2d 879 ). Here, we agree with the Supreme Court's denial of that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull's surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary (see Global Liberty Ins. Co. v. W. Joseph Gorum, M.D., P.C., 143 A.D.3d 768, 39 N.Y.S.3d 193 ; Amherst Med. Supply, LLC v. A. Cent. Ins. Co., 41 Misc.3d 133[A], 2013 N.Y. Slip Op. 518000[U], 2013 WL 5861523 [Sup. Ct., App. Term, 1st Dept.] ; cf. AutoOne Ins./Gen. Assur. v. Eastern Is. Med. Care, P.C., 136 A.D.3d 722, 24 N.Y.S.3d 730 ; Cortland Med. Supply, Inc. v. 21st Century Centennial Ins. Co., 46 Misc.3d 136[A], 2014 N.Y. Slip Op. 51886[U], 2014 WL 7404022 [Sup. Ct., App. Term 1st Dept.] ). In light of the plaintiff's failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Global Liberty Ins. Co. v. W. Joseph Gorum, M.D., P.C., 143 A.D.3d at 770, 39 N.Y.S.3d 193 ).
We agree with the Supreme Court's determination that the plaintiff established its prima facie entitlement to judgment as a matter of law on that branch of its motion which was for summary judgment on so much of the complaint, as, in effect, sought a determination that the amount of the benefits sought by the defendant was not in accordance with the workers' compensation fee schedule (see Oleg's Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc.3d 151[A], 2018 N.Y. Slip Op. 50095[U], 2018 WL 559284 [Sup. Ct. App. Term, 2d Dept.] ; Compas Med., P.C. v. 21st Century Ins. Co., 57 Misc.3d 132[A], 2017 N.Y. Slip Op. 51228[U], 2017 WL 4318009 [Sup. Ct. App. Term, 2d Dept.] ; Renelique v. Allstate Ins. Co., 57 Misc.3d 126[A], 2017 N.Y. Slip Op. 51141[U], 2017 WL 4104509 [Sup. Ct. App. Term 2d Dept.] ; Dynasty Med. Care, P.C. v. 21st Century Advantage Ins. Co., 55 Misc.3d 141[A], 2017 Slip Op. 50597[U], 2017 WL 1822350 [Sup. Ct., App. Term, 2d Dept.] ; Alleviation Med. Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc.3d 149[A], 2015 N.Y. Slip Op. 50778[U], 2015 WL 3369261 [Sup. Ct., App. Term, 2d Dept.] ). Contrary to the court's determination, however, the defendant, in opposition to that prima facie showing, failed to raise a triable issue of fact (see Renelique v. Allstate Ins. Co., 57 Misc.3d 126[A] ; Dynasty Med. Care, P.C. v. 21st Century Advantage Ins. Co., 55 Misc.3d 141[A] ). Accordingly, that branch of the plaintiff's motion should have been granted.
Since the defendant's submissions were not sufficient to establish that the arbitrator and the master arbitrator were correct in awarding the defendant no-fault insurance benefits in the principal sum of $ 11,352.46, the Supreme Court should not have searched the record and awarded summary judgment to the defendant.
RIVERA, J.P., AUSTIN, COHEN and IANNACCI, JJ., concur.