[*1]
Bronx Mega Care Med, PLLC v Federal Ins. Co.
2015 NY Slip Op 51060(U)
Decided on July 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2014-916 S C

Bronx Mega Care Med, PLLC as Assignee of RAOUL HERNANDEZ, Respondent, July 7, 2015

against

Federal Insurance Company, Appellant.


Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 6, 2014. 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 of the District Court which denied defendant's motion for summary judgment dismissing the complaint. In support of its motion, defendant


submitted an affidavit by a third-party claims adjuster, who described her office's procedure for generating and mailing denial of claim forms for defendant, and established that the NF-10 forms which denied the claims at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmed medical report by the doctor who had performed an independent medical examination (IME) on defendant's behalf, which report set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see 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, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]). Contrary to the determination of the District Court, the opposing affirmation of plaintiff's doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (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]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc [*2]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, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Marano and Garguilo, JJ., concur.


Decision Date: July 07, 2015