Opinion
2009-895 K C.
Decided March 8, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 7, 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 affirmed without costs.
PRESENT: RIOS, J.P., PESCE and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's second cause of action.
The affidavit of defendant's claims representative sufficiently established the timely mailing of the claim denial form ( 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 of its cross motion, defendant also submitted the affidavit and peer review report of its chiropractor, which set forth a factual basis and medical rationale for the chiropractor's conclusion that there was a lack of medical necessity for the medical equipment for which plaintiff sought payment in its second cause of action. As a result, defendant made a prima facie showing of its entitlement to summary judgment dismissing plaintiff's second cause of action ( see 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]; Amaze Med. Supply Inc. v Allstate Ins. Co. , 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d 11th Jud Dists 2006]), and the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.
As the doctor's affirmation submitted by plaintiff in opposition to the cross motion was sufficient to raise a triable issue of fact as to medical necessity, the Civil Court properly denied the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's second cause of action. Accordingly, the order, insofar as appealed from, is affirmed.
Rios, J.P., Pesce and Steinhardt, JJ., concur.