Elmont Open Mri & Diagnostic Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co.

• Decision Date: 16 December 2010
• Docket Number: No. 2009–1827 N C.,2009–1827 N C.
• Citation: 30 Misc.3d 126,958 N.Y.S.2d 645,2010 N.Y. Slip Op. 52222
• Court: New York Supreme Court — Appellate Division
• Parties: ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. Doing Business as All County Open MRI & Diagnostic Radiology as Assignee of Stacie Gardner, Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INS. CO., Appellant.

30 Misc.3d 126

958 N.Y.S.2d 645

2010 N.Y. Slip Op. 52222

ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. Doing Business as All County Open MRI & Diagnostic Radiology as Assignee of Stacie Gardner, Respondent,

v.NEW YORK CENTRAL MUTUAL FIRE INS. CO., Appellant.

No. 2009–1827 N C.

Supreme Court, Appellate Term, New York, 9th and 10th Judicial Districts.

Dec. 16, 2010.

OPINION TEXT STARTS HEREPresent: NICOLAI, P.J., MOLIA and LaCAVA, JJ.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated May 21, 2009. The order denied defendant's motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and for an award of costs and sanctions. Plaintiff opposed the motion, and the District Court denied the motion, finding that the affidavit of defendant's senior litigation examiner was insufficient to establish the timely mailing of the denial of claim forms, and that the peer review report submitted by defendant failed to establish that the services rendered lacked medical necessity since the medical records and/or documents relied upon by the peer review doctor in making his determination were not annexed thereto. The instant appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant's senior litigation examiner was sufficient to establish that defendant had timely mailed the denial of claim forms in accordance with defendant's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 [2001] ). The claims were denied on the ground that the services rendered were not medically necessary.

Defendant's affirmed peer review report, submitted in support of its motion, established, prima facie, that there was a lack of medical necessity for the services at issue. The fact that defendant's peer review doctor considered medical records from plaintiff, as well as from other providers who had treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records ( see Urban Radiology, P.C. v. Tri–State Consumer Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; PLP Acupuncture, P.C. v. Progressive Cas. Ins. Co., 22 Misc.3d 142[A], 2009 N.Y. Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v. Allstate Ins. Co., 13 Misc.3d 10 [App Term, 1st Dept 2006] ). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted that plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor ( seeZeldin v. Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007];Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763 [2007];West Tremont Med. Diagnostic, P.C. v. Geico Ins. Co., 13 Misc.3d 131[A], 2006 N.Y. Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006] ). As a result, defendant was not required to consider plaintiff's bills in a vacuum and to ignore medical records which defendant had received either from plaintiff's assignor or from another provider who had submitted such records on behalf of the assignor ( see Urban Radiology, P.C., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] ).

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as...