Opinion
No. 2010–2245 N C.
2012-01-24
TOTAL EQUIPMENT, LLC as Assignee of Paulino Espinal–Nunez, Respondent, v. PRAETORIAN INSURANCE COMPANY, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 14, 2010. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branch of its motion seeking summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the District Court found that defendant had demonstrated that it had timely denied plaintiff's claim, but denied defendant's motion on the ground that the independent medical examination (IME) report annexed to defendant's motion did not establish a lack of medical necessity for the supplies provided.
In support of its motion, defendant submitted, among other things, an affirmed IME report which set forth a factual basis and a medical rationale for the doctor's determination that there was a lack of medical necessity for the supplies provided ( see Elmont Open MRI & Diagnostic Radiology, P.C. v. State Farm Ins. Co., 27 Misc.3d 136[A], 2010 N.Y. Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v. Progressive Cas. Ins. Co., 26 Misc.3d 135[A], 2010 N.Y. Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010] ). Defendant's showing of a lack of medical necessity was not rebutted by plaintiff ( see Speciality Surgical Servs. v. Travelers Ins. Co., 27 Misc.3d 134[A], 2010 N.Y. Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010] ). As plaintiff has not challenged the District Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's motion for summary judgment dismissing the complaint is granted ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. 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 N.Y. Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ).
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.