Opinion
570749/14
12-31-2014
Five Boro Medical Equipment, Inc., a/a/o Anthony Coston, Plaintiff-Respondent, v. New York Central Mutual Fire Insurance Company Defendant-Appellant.
PRESENT: Lowe, III, Schoenfeld, Hunter, Jr., JJ.
Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated May 22, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Andrea Masley, J.), dated May 22, 2013, insofar as appealed from, modified by granting defendant's motion for summary judgment dismissing plaintiff's claims seeking no-fault first-party benefits in the aggregate amount of $1,710.05; as modified, order affirmed, with $10 costs to defendant-appellant.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff's no-fault claims in the total sum of $ 1,710.75, for medical supplies provided to plaintiff's assignor on June 2, 2011 and June 22, 2011, by establishing its proper and timely mailing of the denial of claim forms at issue herein (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]), and submitting a sworn peer review report which set forth a sufficient factual basis and medical rationale for the stated conclusion that the medical supplies provided to the assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff's opposing submission, consisting of an attorney's affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff's objections to the peer review doctor's qualifications "go to the weight and not the admissibility of her opinion" (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).
We sustain so much of the order under review as denied defendant's motion for summary judgement dismissing plaintiff's claim of $1,080 for medical supplies provided to plaintiff's assignor on June 27, 2011, since defendant's own moving papers tend to indicate that this claim was not timely denied (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1990]).
Plaintiff's remaining arguments are either unpreserved for appellate review or without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 31, 2014