October 14, 2011

Radiology Imaging of Queens v Progressive Ins. (2011 NY Slip Op 51860(U))

Headnote

The insurer's unopposed peer review and timely denial established entitlement to dismissal for lack of medical necessity. In its summary judgment motion, the insurer demonstrated that the denial was timely mailed through its standard office practices and procedures. It also submitted an affirmed peer review providing a factual basis and medical rationale for the doctor's opinion that the service was unnecessary. That proof established the insurer's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the order denying the motion and granted the insurer summary judgment dismissing the provider's complaint for assigned no-fault benefits.

Reported in New York Official Reports at Radiology Imaging of Queens v Progressive Ins. (2011 NY Slip Op 51860(U))

[*1]
Radiology Imaging of Queens v Progressive Ins.
2011 NY Slip Op 51860(U) [33 Misc 3d 129(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2010-161 K C.
Radiology Imaging of Queens Doing Business as ADVANCED MEDICAL DIAGNOSTIC as Assignee of HERLIN CHERY, Respondent,

against

Progressive Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 6, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its unopposed motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant established that a denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was timely mailed in accordance with its standard office practices andprocedures (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]). Defendant also submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the rendered service. Consequently, defendant established its prima facie entitlement to summary judgment (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, defendant’s unopposed motion for summary judgment dismissing the [*2]complaint should have been granted.

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

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