| Gaetane Physical Therapy, P.C. v Great N. Ins. Co. |
| 2015 NY Slip Op 50698(U) [47 Misc 3d 145(A)] |
| Decided on May 1, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated February 19, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint, and plaintiff opposed the motion. Insofar as is relevant to this appeal by defendant, the District Court denied defendant's motion and held that the only issue for trial was defendant's defense of lack of medical necessity.
In support of its motion, defendant submitted, among other things, an affirmed medical report by the doctor who had performed the orthopedic independent medical examination (IME) on defendant's behalf. 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 treatment 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]). In opposition to the motion, plaintiff submitted an affidavit by its principal, who did not indicate that she had examined the assignor or otherwise offer any medical evidence to rebut the conclusions set forth in the IME report. Thus, plaintiff failed to raise a triable issue of fact as to medical necessity (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]). As plaintiff has not challenged the District Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]).
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.