| AJS Chiropractic, P.C. v Mercury Ins. Co. |
| 2009 NY Slip Op 50208(U) [22 Misc 3d 133(A)] |
| Decided on February 9, 2009 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 24, 2009; it will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A.
Lebedeff, J.), entered December 5, 2007. The order denied defendant's motion for summary
judgment.
Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services allegedly rendered to plaintiff's assignor lacked medical necessity. Although the Civil Court found that defendant had timely denied the claims, the court denied defendant's motion, apparently on the ground that the independent chiropractic examination report, upon which defendant had based its denials, was not in admissible form, notwithstanding the accompanying affidavit executed by the chiropractor. This appeal by defendant ensued.
Defendant demonstrated that it had timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (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's independent chiropractic examination report, together with the affidavit of the chiropractor, provided a factual basis and medical rationale for the chiropractor's [*2]opinion that the services rendered were not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff failed to present any evidence to refute that showing, defendant's motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; A. KhodadadiRadiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Pesce, P.J., Weston Patterson and Steinhardt, JJ., concur.
Decision Date: February 09, 2009