October 14, 2011

MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51864(U))

Headnote

The court considered the fact that the defendant had timely denied the plaintiff's claim and submitted affirmations and reports demonstrating the lack of medical necessity for the supplies at issue. The main issue decided was whether the supplies provided to the plaintiff's assignor were medically necessary. The holding of the court was that the defendant's cross motion for summary judgment dismissing the complaint should have been granted, as their showing that the supplies were not medically necessary was unrebutted by the plaintiff. Therefore, the court reversed the order and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51864(U))

MSSA Corp. v American Tr. Ins. Co. (2011 NY Slip Op 51864(U)) [*1]

MSSA Corp. v American Tr. Ins. Co.

2011 NY Slip Op 51864(U) [33 Misc 3d 130(A)]

Decided on October 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-1613 K C.

MSSA Corp. as Assignee of LINDA SMITH-PENA, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, 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 medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant “established the issue of timely denials,” a finding which plaintiff does not dispute, defendant’s cross motion for summary judgment dismissing the complaint 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 [*2]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 order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 14, 2011