Opinion
No. 2011–68 K C.
2012-05-11
BLR CHIROPRACTIC, P.C. as Assignee of Jose Ramirez, Respondent, v. AMERICAN TRANSIT INS. CO., Appellant.
Present: WESTON, J.P., PESCE and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 16, 2010. The order denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.
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. Plaintiff's motion was withdrawn, and defendant's cross motion was denied.
The affidavits submitted by defendant were sufficient to establish that defendant had timely denied plaintiff's claim ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) on the ground of lack of medical necessity. Defendant also submitted a peer review report, which set forth the factual basis and medical rationale for the chiropractor's determination that there was a lack of medical necessity for the services at issue, as well as an affidavit executed by the chiropractor who had performed the peer review. Contrary to the Civil Court's finding and plaintiff's argument on appeal, the annexed copy of the peer review report and the accompanying affidavit established, prima facie, a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant's prima facie showing ( see Alur Med. Supply, Inc. v. Clarendon Natl. Ins. Co., 27 Misc.3d 132[A], 2010 N.Y. Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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] ), but plaintiff failed to do so.
Accordingly, the order is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.