January 13, 2012

SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))

Headnote

The relevant facts the court considered were that SI Medical and Surgical Supply, P.C. filed a lawsuit to recover assigned first-party no-fault benefits. The defendant, American Transit Insurance Company, cross-moved for summary judgment to dismiss the complaint. Both parties had established their prima facie cases, and the sole issue for trial was the medical necessity of the supplies rendered to plaintiff's assignor. Defendant appealed the denial of its cross motion for summary judgment. The main issue decided was whether the supplies provided by the plaintiff were medically necessary. In support of its cross motion, defendant submitted affirmed peer review reports which stated the medical rationale for the determination that there was a lack of medical necessity for the supplies at issue. Plaintiff did not rebut defendant's showing that the supplies were not medically necessary. The holding of the case was that defendant's cross motion for summary judgment was granted, and the order of the Civil Court, which denied defendant's cross motion, was reversed. The court found that there was a lack of medical necessity for the supplies provided and granted summary judgment in favor of the defendant dismissing the complaint.

Reported in New York Official Reports at SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))

SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U)) [*1]

SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co.

2012 NY Slip Op 50054(U) [34 Misc 3d 140(A)]

Decided on January 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2010-2749 K C.

SI Medical and Surgical Supply, P.C. as Assignee of DJOKA NIKAC, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered June 1, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the supplies rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that such supplies were not medically necessary was not rebutted by [*2]plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment 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, 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 & 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 & 11th Jud Dists 2007]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 13, 2012