Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U))

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co.

2010 NY Slip Op 50491(U) [26 Misc 3d 146(A)]

Decided on March 19, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

GZ Medical and Diagnostic, P.C. as assignee of LINA GALAN, Respondent,

against

Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 23, 2009. The order denied defendant's motion for partial summary judgment dismissing plaintiff's second and third causes of action.

ORDERED that the order is reversed without costs and defendant's motion for partial summary judgment dismissing plaintiff's second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing plaintiff's second and third causes of action on the ground that the services rendered to plaintiff's assignor for which plaintiff sought payment were not medically necessary.
Plaintiff opposed the motion, and the Civil Court denied the motion, finding that there was a question of fact as to medical necessity.

Defendant made a prima facie showing of its entitlement to partial summary judgment dismissing plaintiff's second and third causes of action by establishing that it timely denied the claim forms (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]), on the ground of lack of medical necessity, and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for the doctor's opinion that the medical services provided to plaintiff's assignor were not medically necessary [*2](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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff's doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]). Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant's peer reviewer, and that said documents were "essential to justify opposition" to defendant's motion (see CPLR 3212 [f]), plaintiff, in this case, "failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact" (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]).