Opinion
10-27-2011
Complete Radiology, P.C. as Assignee of RENEE HAMER, Appellant, v. Progressive Insurance Company, Respondent.
PRESENT: : , P.J., WESTON and RIOS, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 17, 2010. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
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. The Civil Court, in effect, denied both motions, holding, pursuant to CPLR 3212 (g), among other things, that the sole issue to be determined at trial was the medical necessity of the services rendered. This appeal by plaintiff ensued.
The Civil Court did not improvidently exercise its discretion when it considered defendant's untimely cross motion as plaintiff submitted opposition to the cross motion and failed to demonstrate that it had suffered any prejudice as a result of defendant's delay (see A.M. Med. Servs., P.C. v GEICO Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51029 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).
In papers submitted in support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff's motion for summary judgment, defendant included an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer's opinion that there was a lack of medical necessity for the services rendered (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d & 11th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff's motion.
We decline defendant's request that we search the record and grant defendant summary judgment.
Accordingly, the order, insofar as appealed from, is affirmed.