Opinion
2009-1567 K C.
Decided October 1, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered May 26, 2009. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff cross-moved for summary judgment. The Civil Court denied both the motion and the cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it had timely denied the claims at issue on the ground of medical necessity and that defendant's defense of medical necessity was the only issue remaining for trial. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant was sufficient to establish that defendant's denial of claim forms, which had denied the claims at issue of the ground of lack of medical necessity, were timely mailed in accordance with defendant's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 ; 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]). Defendant also submitted, among other things, sworn peer review reports, as well as an affidavit executed by the chiropractor who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, 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]), defendant's motion for summary judgment is granted ( see 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]; 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., Rios and Steinhardt, JJ., concur.