October 7, 2013

AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U))

Headnote

The relevant facts considered by the court were that AP Diagnostic Medical, acting on behalf of Ivan Aybar, sought to recover first-party no-fault benefits from Chubb Indemnity Insurance Company, who had denied the claim for MRI testing as not medically necessary. The main issue decided by the court was whether the defendant-insurer was entitled to summary judgment dismissing the complaint. The holding of the court was that the action was not ripe for summary dismissal, as the plaintiff's opposing submission raised a triable issue of fact regarding the medical necessity of the MRI testing. The court found that the medical affidavit submitted by the plaintiff, detailing the assignor's complaints of pain and restricted range of motion in his cervical spine, was sufficient to raise a triable issue as to the medical necessity of the MRI. Therefore, the order of the Civil Court denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U))

AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U)) [*1]

AP Diagnostic Med., PC v Chubb Indem. Ins. Co.

2013 NY Slip Op 51647(U) [41 Misc 3d 126(A)]

Decided on October 7, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570292/13.

AP Diagnostic Medical, PC, a/a/o Ivan Aybar, Plaintiff-Respondent,
against
Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 2013