Opinion
No. 2010–2200 K C.
2011-12-23
BIOBALANCE MEDICAL, P.C. as Assignee of Julian Alvarez, Edgar Arroyo, Frederick Boothe, Anton Boyko, Eligio Perez and Liliardo Rios, Respondent, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellant.
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing plaintiff's third cause of action.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment dismissing plaintiff's third cause of action is 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 its motion for summary judgment dismissing plaintiff's third cause of action.
In support of its motion for summary judgment, defendant established that it timely denied plaintiff's claim ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins. Cos., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) on the ground of lack of medical necessity. As the affirmed peer review report annexed to defendant's motion papers set forth a factual basis and medical rationale for the peer review doctor's determination that there was a lack of medical necessity for the services at issue, defendant established its prima facie entitlement to summary judgment dismissing plaintiff's third cause of action ( see Delta Diagnostic Radiology, P.C., 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. American 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] ). In opposition to defendant's motion, plaintiff failed to raise a triable issue of fact, as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, 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, 11th & 13th Jud Dists 2009] ). Accordingly, the Civil Court's order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing plaintiff's third cause of action is granted.