November 1, 2019

Sovera Med. Supply Corp. v 21st Century Ins. Co. (2019 NY Slip Op 51802(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Sovera Medical Supply Corp., was seeking to recover first-party no-fault benefits from the defendant, 21st Century Insurance Company. The defendant moved for summary judgment to dismiss the complaint, stating that there was a lack of medical necessity for the supplies in question. The plaintiff cross-moved for summary judgment, but both motions were denied by the Civil Court of the City of New York, Kings County. The main issue decided by the court was whether there was a lack of medical necessity for the supplies in question, as stated by the defendant. The court found that the peer review report submitted by the defendant sufficiently set forth a factual basis and medical rationale for the determination of a lack of medical necessity. The plaintiff's submission of an affidavit from a doctor failed to meaningfully address or rebut the conclusions set forth in the peer review report. The holding of the case was that the order of the Civil Court granting the defendant's motion for summary judgment and denying the plaintiff's cross motion for summary judgment was affirmed. The court concluded that there was a lack of medical necessity for the supplies in question, as supported by the peer review report, and therefore, the defendant was entitled to summary judgment dismissing the complaint.

Reported in New York Official Reports at Sovera Med. Supply Corp. v 21st Century Ins. Co. (2019 NY Slip Op 51802(U))

Sovera Med. Supply Corp. v 21st Century Ins. Co. (2019 NY Slip Op 51802(U)) [*1]

Sovera Med. Supply Corp. v 21st Century Ins. Co.

2019 NY Slip Op 51802(U) [65 Misc 3d 147(A)]

Decided on November 1, 2019

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 1, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1317 K C

Sovera Medical Supply Corp., as Assignee of Zunilda Garcia, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Rachel L. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered March 27, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground, among others, that there was a lack of medical necessity for the supplies in question, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Contrary to plaintiff’s contention, the peer review report submitted by defendant sufficiently set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to defendant’s motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, [*2]P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

In light of the foregoing, we reach no other issue.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019