October 27, 2011

Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))

Headnote

The relevant facts the court considered in this case were that Complete Radiology, P.C. as assignee of Renee Hamer, was seeking to recover first-party no-fault benefits from Progressive Insurance Company. The main issue decided by the court was whether the services rendered were medically necessary. The holding of the case was that the Civil Court did not err in denying both parties' motions for summary judgment, and that the only issue to be determined at trial was the medical necessity of the services rendered. The court also found that defendant's untimely cross motion was considered due to the plaintiff's failure to demonstrate prejudice, and that the peer review report provided by the defendant appropriately supported the denial of plaintiff's motion for summary judgment. The decision of the Civil Court was affirmed.

Reported in New York Official Reports at Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))

Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U)) [*1]

Complete Radiology, P.C. v Progressive Ins. Co.

2011 NY Slip Op 52015(U) [33 Misc 3d 135(A)]

Decided on October 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Complete Radiology, P.C. as Assignee of RENEE HAMER, Appellant,
against
Progressive Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 17, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

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, in effect, denied both motions, holding, pursuant to CPLR 3212 (g), among other things, that the sole issue to be determined at trial was the medical necessity of the services rendered. This appeal by plaintiff ensued.

The Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion as plaintiff submitted opposition to the cross motion and failed to demonstrate that it had suffered any prejudice as a result of defendant’s delay (see A.M. Med. Servs., P.C. v GEICO Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51029 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).

In papers submitted in support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant included an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that there was a lack of medical necessity for the services rendered (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d & 11th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff’s motion.

We decline defendant’s request that we search the record and grant defendant summary judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011