June 3, 2016

Ther-Ox Home Care, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50869(U))

Headnote

The relevant facts in this case were that Ther-Ox Home Care, Inc. was seeking to recover assigned first-party no-fault benefits from Praetorian Insurance Company. The main issue decided was that the Civil Court denied defendant's motion for summary judgment dismissing the complaint, but limited the issues for trial to the medical necessity of the supplies in question. The holding of the case was that the Appellate Term, Second Department reversed the order and granted defendant's motion for summary judgment dismissing the complaint, citing that the plaintiff's affidavit from a doctor failed to sufficiently rebut the conclusions set forth in the peer review report provided by the defendant. Ultimately, the court found that there was a lack of medical necessity for the supplies at issue.

Reported in New York Official Reports at Ther-Ox Home Care, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50869(U))

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

Ther-Ox Home Care, Inc., as Assignee of LANNIE AMBROSE, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

In support of its motion, defendant submitted a sworn peer review report which 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 the 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, 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 view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

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

Decision Date: June 03, 2016