Opinion
No. 2011–345QC.
2012-08-31
DR. TODD GOLDMAN, D.C., P.C. as Assignee of Paul Zerafa, Respondent, v. KEMPER CASUALTY INSURANCE COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 14, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
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 Civil Court denying defendant's motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.
The affidavit submitted by defendant in support of its motion established that defendant had timely denied plaintiff's claims ( 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. In addition, defendant submitted a sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor's determination that there was a lack of medical necessity for the services at issue. Since defendant's prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint ( 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] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.