May 6, 2013

Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))

Headnote

The court considered the denial of both the plaintiff's motion for summary judgment and the defendant's cross motion for summary judgment, with the sole issue for trial being medical necessity. The main issue decided was whether the defendant was entitled to summary judgment in a case by a provider to recover assigned first-party no-fault benefits. The court held that the defendant's cross motion for summary judgment dismissing the complaint should have been granted as the sworn peer review report provided a factual basis and medical rationale for the lack of medical necessity for the medical supplies at issue, and the plaintiff's opposition failed to meaningfully rebut the conclusions set forth in the peer review report. Therefore, the court reversed the prior determination and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))

Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U)) [*1]

Park Slope Med. v Praetorian Ins. Co.

2013 NY Slip Op 50761(U) [39 Misc 3d 141(A)]

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1588 K C.

Park Slope Medical and Surgical Supply, Inc. as Assignee of MARISSA HUTTON, Respondent, —
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered March 30, 2011. The order, insofar as appealed from, upon, in effect, granting defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, adhered to the prior determination denying the cross motion.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross 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, by order entered March 5, 2010, denied both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, finding that “the sole issue for trial is medical necessity.” Defendant appeals from so much of an order of the Civil Court entered March 30, 2011, as, in effect, upon granting defendant’s motion for leave to reargue its prior cross motion, adhered to the prior determination that defendant was not entitled to summary judgment.

Defendant submitted a sworn 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 [*2]medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was “more than adequate.” In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone 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, 11th & 13th Jud Dists 2009]). Consequently, defendant’s cross motion should have been granted (see 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 & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013