March 31, 2010

Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))

Headnote

The main issue in this case was whether the professional health services provided by the plaintiff were medically necessary, as defendant moved for summary judgment dismissing the complaint on the ground that they lacked medical necessity. Defendant established their entitlement to summary judgment by timely mailing the claim denial form and submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for the opinion that the professional health services were not medically necessary. In opposition to the motion, the plaintiff failed to raise a triable issue of fact, as the psychologist's affirmation submitted by plaintiff did not meaningfully refer to or rebut the conclusions set forth in the peer review report. Therefore, the court affirmed the order granting defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U))

Prime Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50585(U)) [*1]

Prime Psychological Servs., P.C. v Mercury Ins. Group

2010 NY Slip Op 50585(U) [27 Misc 3d 127(A)]

Decided on March 31, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-83 Q C.

Prime Psychological Services, P.C. a/a/o BRENCY PAULINO, Appellant,
against
Mercury Insurance Group, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 28, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the professional health services provided lacked medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal ensued.

Defendant made a prima facie showing of its entitlement to summary judgment by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for his opinion that the professional health services at issue were not medically necessary (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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 2010