Total Equip., LLC v Mercury Cas. Co. (2013 NY Slip Op 52220(U))

Total Equip., LLC v Mercury Cas. Co.

2013 NY Slip Op 52220(U) [42 Misc 3d 131(A)]

Decided on December 20, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Total Equipment, LLC as Assignee of JESSICA FELIPE, Appellant, —

against

Mercury Casualty Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated September 22, 2011. The order granted defendant's motion for summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant's motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted, among other things, an affirmed independent medical examination (IME) report, in which the doctor concluded, based on her December 3, 2009 independent orthopedic evaluation of the assignor, that the assignor's injuries had resolved and that there was no need for durable medical equipment, testing or treatment. The report 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 (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). Based upon the IME report, defendant denied reimbursement of no-fault benefits as of December 18, 2009. While plaintiff argues that the prescription for the supplies was written prior to the IME, it is undisputed that the prescription was not filled until December 21, 2009, subsequent to the effective date of the denial. Consequently, the burden shifted to plaintiff to rebut defendant's prima facie showing that there was a lack of medical necessity for the supplies at issue. Inasmuch as plaintiff submitted only an attorney's affirmation and a copy of the prescription for the supplies at issue, plaintiff failed to raise a triable issue of fact.