Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U))

Park Slope Med. v Praetorian Ins. Co.

2013 NY Slip Op 50761(U) [39 Misc 3d 141(A)]

Decided on May 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2d, 11th and 13th JUDICIAL DISTRICTS

Park Slope Medical and Surgical Supply, Inc. as Assignee of MARISSA HUTTON, Respondent, —

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered March 30, 2011. The order, insofar as appealed from, upon, in effect, granting defendant's motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, adhered to the prior determination denying the cross motion.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 5, 2010, denied both plaintiff's motion for summary judgment and defendant's cross motion for summary judgment, finding that "the sole issue for trial is medical necessity." Defendant appeals from so much of an order of the Civil Court entered March 30, 2011, as, in effect, upon granting defendant's motion for leave to reargue its prior cross motion, adhered to the prior determination that defendant was not entitled to summary judgment.

Defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the [*2]medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was "more than adequate." In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review 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 cross motion should have been granted (see 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, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.