In Throgs Neck Multicare v. Mercury Cas. Co.,1 the defendant insurer moved for summary judgment dismissing the complaint by a medical provider on the ground of lack of medical necessity of the services in dispute, based on the affirmed report of a physician who performed an independent medical examination (IME). The plaintiff opposed and submitted the affirmed report of its treating physician. No issue was raised as to the substantive sufficiency of plaintiff’s rebuttal affirmation which, as the court found, meaningfully referred to and rebutted the conclusions of defendant’s IME physician.2
Ordinarily, where, as here, the plaintiff opposes a motion for summary judgment with a rebuttal affirmation that meaningfully refers to and rebuts the defendant’s peer review or IME report, the motion would be denied as triable issues of fact exist as to the medical necessity of the services rendered. However, in its reply papers, the defendant argued that the plaintiff’s rebuttal affirmation was inadmissible and, therefore, should not be considered by the court. Defendant cited CPLR 2106, which provides, inter alia,
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
