Opinion
2003-193 Q C.
Decided March 26, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (P. Kelly, J.), entered October 23, 2002, denying its motion for partial summary judgment in the sum of $6,418.48.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
In this action to recover $11,251.62 in assigned first-party no-fault benefits, the court below denied plaintiff's motion for partial summary judgment on $6,418.48 of itsclaims. Plaintiff appeals that order to the extent that it denied $3,897.20 in benefits for treatment rendered prior to December 28, 2001, conceding, in its brief, that a file-based peer review and the results of an independent medical examination, conducted December 27, 2001 and December 28, 2001 respectively, created triable issues of fact whether prior diagnostic tests and all subsequent tests and treatments were medically necessary ( Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). In our view, the court properly denied summary judgment.
A no-fault benefits claimant establishes its prima facie case for summary judgment by "proof of the fact and amount of loss sustained" (Insurance Law § 5106 [a]), via the statutory claim forms (11 NYCRR 65.15 [b] [4]) or their functional equivalent (11 NYCRR 65.15 [d] [5); Amaze Med. Supply Inc. v. Eagle Ins. Co., supra). Defendant timely denied the claim (11 NYCRR 65.15 [g] [3]) on the ground that certain of plaintiff's treatments were medically unnecessary ( Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 202; Bonetti v. Integon Natl. Ins. Co., 269 AD2d 413, 414) based on peer reviews which, in our view, set forth a sufficient factual foundation and medical rationale for the claims' rejection ( Amaze Med. Supply Inc. v. Eagle Ins. Co., supra). With respect to the acupuncture claims, assignor's apparent denial that he received such treatment, as recorded in the medical examination report, created a triable issue whether the claim based thereon was appropriate.
Accordingly, the matter is remanded to the court below for all further proceedings on the claims.