St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 51728(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 3, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and granted the branch of a motion by plaintiff seeking to deem certain facts established for all purposes in the action.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the Civil Court’s order as found that plaintiff had established its prima facie case and as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (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]).

Defendant denied the claim at issue in plaintiff’s first cause of action on the ground of lack of medical necessity. In support of its cross motion, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided. As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action should have been granted (see 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]; 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]; 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]).

Defendant denied the claims at issue in plaintiff’s second, third and fourth causes of action based upon plaintiff’s assignor’s failure to appear for properly scheduled independent medical examinations (IMEs). In support of the branches of its cross motion seeking summary judgment as to those causes of action, defendant submitted the affidavit of an employee of Media Referral Inc., which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on February 27, 2007 and March 9, 2007 in accordance with Media Referral’s standard office practices and procedures (see Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted the affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on March 8 and March 22, 2007 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department
Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the branches of defendant’s cross motion seeking summary judgment as to those causes of action should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied. In light of our determination, we do not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 01, 2010