Opinion
No. 2010–3169 Q C.
2012-06-28
RICHMOND RADIOLOGY, P.C. as Assignee of Joseph Santana, Appellant,— v. STATE FARM INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 21, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the order entered October 21, 2010 denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.
Present: WESTON, J.P., PESCE and ALIOTTA, JJ.
ORDERED that the judgment is reversed, without costs, so much of the order entered October 21, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( seeCPLR 5501 [c] ).
In support of its cross motion for summary judgment, defendant established that it had timely denied the claims at issue ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 A.D.3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App Term, 2d & 11th Jud Dists 2007] ) on the ground of lack of medical necessity. Moreover, defendant submitted two sworn peer review reports which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. However, in support of its motion for summary judgment, plaintiff submitted an affirmed letter of medical necessity from the treating chiropractor, which demonstrated the existence of a question of fact as to medical necessity ( see Quality Psychological Servs., P.C. v. Mercury Ins. Group, 27 Misc.3d 129[A], 2010 N.Y. Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 22 Misc.3d 141[A], 2009 N.Y. Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). Accordingly, defendant's cross motion should have been denied ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). We note that defendant's objection on appeal to the fact that plaintiff's submission was affirmed, not sworn, was waived, as defendant failed to raise that objection in the Civil Court ( see Delta Diagnostic Radiology, P.C. v. Interboro Ins. Co., 29 Misc.3d 137[A], 2010 N.Y. Slip Op 52022[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Continental Med., P.C. v. Mercury Cas. Co., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ).
Accordingly, the judgment is reversed, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion for summary judgment is denied.