OMEGA 18 INC v. GLOBAL LIBERTY INSURANCE COMPANY OF NEW YORK (2020)

Order (Naita A. Semaj, J.), entered April 2, 2019, insofar as appealed from, reversed, without costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the underlying first-party no-fault action. The proof submitted by defendant, including the affirmed peer review report of its physician, set forth a factual basis and medical rationale for the conclusion that the medical supplies plaintiff provided to its assignor, including a portable whirlpool, heat lamp and massager, were not medically necessary (see Triangle R Inc. v. New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). The report explained that the assignor was already receiving physical, acupuncture and chiropractic therapy for her injuries and that the equipment at issue was either unnecessary or redundant (see Enko Enters. Intl., Inc. v. Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [App Term, 1st Dept 2010]).

Plaintiff's opposition, consisting of an attorney's affirmation, prescription and various claim forms, was unaccompanied by any medical evidence or other competent proof of medical necessity, and failed to raise a triable issue (see TC Acupuncture, P.C. v. Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Karina K. Acupuncture, P.C. v. AIG Centennial Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50415[U] [App Term, 1st Dept 2016]; Cortland Med. Supply, Inc. v. 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U] [App Term, 1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.