February 1, 2013

Barakat Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50180(U))

Headnote

The main issue in this case was whether a provider was entitled to recover assigned first-party no-fault benefits for claims of service on certain dates. The relevant facts the court considered included a timely denial by the insurance company on the ground of lack of medical necessity, as well as the submission of an affirmed peer review report and an affirmed independent medical examination (IME) report providing a factual basis and medical rationale for the determination of lack of medical necessity. The court held that the provider's motion for summary judgment should have been denied and the insurance company's cross-motion for summary judgment should have been granted. Therefore, the judgment was reversed, and the branch of the provider's motion seeking summary judgment was vacated, while the branch of the insurance company's cross-motion seeking summary judgment was granted.

Reported in New York Official Reports at Barakat Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50180(U))

Barakat Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50180(U)) [*1]

Barakat Med. Care, P.C. v Praetorian Ins. Co.

2013 NY Slip Op 50180(U) [38 Misc 3d 137(A)]

Decided on February 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-767 Q C.

Barakat Medical Care, P.C. as Assignee of SERITA FIELDS-SUBRYAN, Respondent, —
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered January 13, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The appeal is deemed to be from a judgment of the same court entered February 4, 2011 awarding plaintiff the principal sum of $1,780.19 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant [*2]appeals from so much of an order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]; see also All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]) plaintiff’s claims for dates of service December 18, 2008 and May 18, 2009 on the ground of lack of medical necessity. Defendant also annexed an affirmed peer review report and an affirmed independent medical examination (IME) report, 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 services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report and the IME 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]). As a result, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009 should have been 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]).

Accordingly, the judgment is reversed, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013