October 13, 2016

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))

Headnote

The court considered the fact that the plaintiff, AL Acupuncture, P.C., had moved for summary judgment to recover assigned first-party no-fault benefits, while the defendant, Praetorian Insurance Company, cross-moved for summary judgment to dismiss the complaint based on lack of medical necessity. The specific issue at hand was the medical necessity of the claims for services rendered from October 27, 2008 to April 23, 2009. The court ultimately held that the defendant's cross motion seeking summary judgment to dismiss those claims was granted. The court noted that the defendant had submitted a sworn report of an independent medical examination, which demonstrated a lack of medical necessity for the services in question, and the plaintiff had failed to oppose this evidence. As a result, the court found in favor of the defendant and reversed the previous order, granting the branch of the defendant's cross motion seeking summary judgment dismissing the claims in question.

Reported in New York Official Reports at Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U)) [*1]

AL Acupuncture, P.C. v Praetorian Ins. Co.

2016 NY Slip Op 51515(U) [53 Misc 3d 140(A)]

Decided on October 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2432 K C

AL Acupuncture, P.C., as Assignee of YANA SIMONYAN, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 21, 2013. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on various grounds, including lack of medical necessity. As to so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009, the Civil Court denied both the motion and the cross motion, but limited the issues for trial to the medical necessity of those claims (see CPLR 3212 [g]). As limited by its brief, defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing those claims.

In support of its cross motion, defendant submitted a sworn report of an independent medical examination, which report set forth a factual basis and medical rationale for the examiner’s determination that there was a lack of medical necessity for the services at issue. Plaintiff failed to oppose defendant’s cross motion. As defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on the claims at issue, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 13, 2016