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Sky Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50050 (N.Y. App. Term 2012)

Opinion

2009-1721 K C

01-13-2012

Sky Medical Supply, Inc. as Assignee of WENDY FISHER, Respondent, v. New York Central Mutual Fire Insurance Company, Appellant.


PRESENT: : , J.P., WESTON and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 8, 2009. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant's denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, had been 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 [2008]; 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, an affidavit by its chiropractor/acupuncturist, together with her peer review report, which set forth a factual basis and medical rationale for her determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that the supplies were not medically necessary was not rebutted by plaintiff. In light of the foregoing, defendant's motion for summary judgment dismissing the complaint should have been 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]).

Golia, J.P., Weston and Rios, JJ., concur.


Summaries of

Sky Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50050 (N.Y. App. Term 2012)
Case details for

Sky Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co.

Case Details

Full title:Sky Medical Supply, Inc. as Assignee of WENDY FISHER, Respondent, v. New…

Court:Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Jan 13, 2012

Citations

2012 N.Y. Slip Op. 50050 (N.Y. App. Term 2012)