EXCEL SURGERY CENTER v. HERTZ CLAIM MANAGEMENT CORP (2017)

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary.

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer's determination that there had been a lack of medical necessity for the services at issue (see American Chiropractic Care, P.C. v. Praetorian Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50346[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). However, in opposition to the motion, plaintiff submitted an affidavit by one of the chiropractors who had performed the services at issue, which, as plaintiff argues on appeal, “meaningfully referred to defendant's peer review report and sufficiently rebutted the conclusions set forth therein” (Vinings Spinal Diagnostic, P.C. v. Geico Gen. Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51897[U], *1–2 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; see also Westcan Chiropractic, P.C. v. Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ) and, thus, was sufficient to raise a triable issue of fact as to medical necessity.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.