Opinion
No. 2010–2243 N C.
2012-01-17
TOTAL EQUIPMENT, LLC as Assignee of George Osei–Tutu, Respondent, v. PRAETORIAN INSURANCE COMPANY, Appellant.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), dated June 24, 2010. 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 which denied its unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.
In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claims on the ground of lack of medical necessity ( see Richard Morgan Do, P.C. v. State Farm Mut. Auto. Ins. Co., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v. Kemper Auto & Home Ins. Co., 14 Misc.3d 141[A], 2007 N.Y. Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007] ). Contrary to the conclusion of the District Court, the affidavit of defendant's chiropractor and his independent medical examination (IME) report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the equipment provided to plaintiff's assignor ( 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] ), so as to shift the burden to plaintiff to rebut defendant's prima facie showing.
As plaintiff did not submit papers opposing defendant's motion, defendant's motion should have been granted. Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.