Opinion
2009-86 Q C.
Decided March 10, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 19, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's second cause of action.
ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant's cross motion seeking summary judgment dismissing the second cause of action is granted.
PRESENT: RIOS, J.P., PESCE and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment on its second cause of action, and defendant cross-moved for summary judgment dismissing said cause of action on the ground of lack of medical necessity. The Civil Court denied plaintiff's motion and defendant's cross motion, finding that the sole issue to be determined at trial was medical necessity.
Defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity ( see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d 11th Jud Dists 2007]). In support for its cross motion for summary judgment, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue ( Exclusive Med. Supply, Inc. v Mercury Ins. Group , 25 Misc 3d 136 [A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. , 24 Misc 3d 136 [A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th 13th Jud Dists 2009]). In opposition to defendant's cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff's doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report ( see Pan Chiropractic, P.C. v Mercury Ins. Co. , 24 Misc 3d 136 [A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co. , 25 Misc 3d 137 [A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th 13th Jud Dists 2009]). Accordingly, the branch of defendant's cross motion which sought summary judgment dismissing the second cause of action should have been granted ( id.; see also 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]).
Rios, J.P., Pesce and Steinhardt, JJ., concur.