June 6, 2016

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U))

Headnote

The court considered a provider's claim to recover assigned first-party no-fault benefits. The defendant had denied the claim on the grounds of lack of medical necessity for the supplies provided and because the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The court granted the defendant's motion for summary judgment dismissing the complaint based on the assignor's failure to appear for the IMEs. The defendant submitted an affirmed peer review report to support its motion, which outlined the lack of medical necessity for the supplies. In opposition, the plaintiff submitted an affidavit from a doctor, but it failed to sufficiently rebut the conclusions set forth in the peer review report. Therefore, the court affirmed the order granting summary judgment to the defendant on the ground of lack of medical necessity.

Reported in New York Official Reports at Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U))

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U)) [*1]

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 50918(U) [52 Misc 3d 128(A)]

Decided on June 6, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2080 Q C

Infinite Ortho Products, Inc., also Known as INFINATE ORTHO PRODUCTS, INC., as Assignee of MATTHEW JEWEL, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely denied plaintiff’s claim on the ground of lack of medical necessity for the supplies furnished by plaintiff and that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court granted defendant’s motion based on the failure of plaintiff’s assignor to appear for the IMEs.

In support of its motion, defendant submitted an affirmed 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 supplies at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently 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 Dept, 2d, 11th & 13th Jud Dists 2009]). As a result, since plaintiff does not challenge the Civil Court’s determination that defendant’s denial of claim form had been timely mailed, defendant was entitled to summary judgment dismissing the complaint on the ground of lack of medical necessity. In light of the foregoing, we need not reach plaintiff’s contentions with respect to defendant’s proof that plaintiff’s assignor failed to appear for the IMEs.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2016