Opinion
2007-59 K C.
Decided March 12, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered November 3, 2006. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff's corporate officer stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. Defendant cross-moved for summary judgment on the ground of lack of medical necessity. The court below denied plaintiff's motion and granted defendant's cross motion, finding that defendant established its defense of lack of medical necessity. This appeal by plaintiff ensued.
Since the affidavit submitted by plaintiff's officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment was properly denied.
There is no merit to plaintiff's argument that defendant's cross motion should have been denied because its NF-10 denial forms, which were based upon peer review reports, did not assert sufficient facts and a medical rationale based thereon to set forth the reason for the denials ( see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. , 39 AD3d 779 ). Further, the sworn papers submitted in support of defendant's cross motion, including detailed peer review reports, established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant's cross motion for summary judgment ( Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. , 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d 11th Jud Dists 2007]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.