March 1, 2019

Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))

Headnote

The main issue in the case was whether the plaintiff, Mag Medical, P.C., as the assignee of Nadezda Emelianova, was entitled to recover assigned first-party no-fault benefits from the defendant, Kemper Insurance Company. The defendant had filed a motion for summary judgment to dismiss the complaint, claiming that they had timely mailed the denial of claim forms and that there was a lack of medical necessity for the services at issue. In support of their motion, the defendant submitted an affirmed peer review report, but the plaintiff did not submit any medical evidence in opposition. The court ultimately reversed the order of the Civil Court, granting the defendant's motion for summary judgment and dismissing the complaint, as the plaintiff had failed to rebut the defendant's prima facie showing of lack of medical necessity.

Reported in New York Official Reports at Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U))

Mag Med., P.C. v Kemper Ins. Co. (2019 NY Slip Op 51051(U)) [*1]

Mag Med., P.C. v Kemper Ins. Co.

2019 NY Slip Op 51051(U) [64 Misc 3d 132(A)]

Decided on March 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 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
2016-2627 K C

Mag Medical, P.C., as Assignee of Nadezda Emelianova, Respondent,
against
Kemper Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Law Office of Florence Zabokritsky, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered August 1, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

The evidence submitted by defendant in support of its motion established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Plaintiff did not submit any medical evidence in opposition to rebut defendant’s prima facie showing. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Lynbrook Med. of NY, P.C. v Praetorian Ins. Co., 48 Misc 3d 139[A], 2015 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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