Opinion
No. 2014–916 S C.
07-07-2015
BRONX MEGA CARE MED, PLLC as Assignee of Raoul Hernandez, Respondent, v. FEDERAL INSURANCE COMPANY, Appellant.
Opinion
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant's motion for summary judgment dismissing the complaint. In support of its motion, defendant submitted an affidavit by a third-party claims adjuster, who described her office's procedure for generating and mailing denial of claim forms for defendant, and established that the NF–10 forms which denied the claims at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; Richard Morgan Do, P.C. v. State Farm Mut. Auto. Ins. Co., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50242 [U] [App Term, 9th & 10th Jud Dists 2009] ). Defendant also proffered an affirmed medical report by the doctor who had performed an independent medical examination (IME) on defendant's behalf, which report set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered (see Dynamic Med. Imaging, P.C. v. New York Cent. Mut. Fire Ins. Co., 29 Misc.3d 139[A], 2010 N.Y. Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010] ). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v. State Farm Ins. Co., 27 Misc.3d 136[A], 2010 N.Y. Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010] ).
In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v. State Farm Ins. Co., 40 Misc.3d 129[A], 2013 N.Y. Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013] ). Contrary to the determination of the District Court, the opposing affirmation of plaintiff's doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME 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] ). Consequently, defendant's motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 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] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
IANNACCI, J.P., MARANO and GARGUILO, JJ., concur.