Pursuant to the Civil Procedure Law and Rules (CPLR) §2219(a), recitation of the papers considered on the review of this motion for summary judgment. Papers submitted Numbered Defendant’s Notice of Motion and 1 Annexed Affidavits Plaintiff’s Affirmation in Opposition 2 Defendant’s Affirmation in reply 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Integon National Insurance Company, (“Defendant/Insurer”), appearing by its attorney in a No-Fault proceeding, moves this Court pursuant to CPLR §3212 for an order granting summary judgment and dismissing the complaint for lack of medical necessity of the medical supplies provided to Assignor. Plaintiff opposes on the grounds that Defendant Insurer failed to establish its defense of medical necessity with evidence admissible pursuant to CPLR §2106 because the peer review report contained an electronic signature and the supporting medical records were not attached to the peer review. Defendant Insurer replies that the Plaintiff failed to rebut the Defendant Insurer’s assertion that the medical equipment was not medically necessary. Based on the foregoing, Defendant’s motion for summary judgment is GRANTED, in its entirety. Procedural History Plaintiff, a medical equipment provider, commenced the instant No-Fault action seeking payment for medical products provided in the amount of $1,560.06 to assignor Chet Samuel to assist with his recovery from alleged injuries he sustained in an automobile accident that occurred on or about June 10, 2017.1 Defendant Insurer received two bills from Plaintiff on or about July 24, 2017 for equipment provided on or about June 27, 2017. The first bill charged $860.20 for a cervical collar, a lumbar orthosis, a dry pressure mattress, and an orthopedic car seat. The second bill charged $699.86 for a water circulating pump. On or about August 23, 2017, the Defendant Insurer mailed denials for both of Plaintiff’s bills citing a lack of medical necessity or etiology for the prescribed medical equipment.2 On September 24, 2019, Defendant Insurer moved for summary judgment seeking the dismissal of the complaint because there was a lack of medical necessity for the medical equipment ordered. Applicable Law Summary judgment may only be granted if no genuine triable issue of fact is presented. See Bill Birds, Inc. v. Stein Law Firm, P.C., 2020 NY Slip Op 02125 (U) (Court of Appeals, March 31, 2020). The movant must establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” in the movant’s favor and must do so by evidentiary proof in admissible form. See CPLR §3212(b); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065 (1979). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1986). Once the movant has met its burden, the burden shifts to the opposing party to establish the existence of material issues of fact that would require a trial. Alvarez v. Prospect Hospital, 68 N.Y.S. 2d 320, 324 (1986). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a summary judgment motion. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y. 2d 223, 231 (1978) followed by Smalls v. Adams, 118 A.D. 3d 693 (2nd Dep’t. 2014). Failing to respond to a fact attested to in the moving papers, will be deemed to admit it. Kuehne &Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 (1975). New York State Insurance Law and Regulations 11 NYCRR §65 (Regulations) provide that an insurer must pay or deny a claim for No-Fault benefits within thirty days from the receipt of the claim. See Insurance Law §5106; and Regulations §65-3.8. Defendant must produce legally sufficient evidence that a denial form was generated and mailed within 30-days of the receipt of the claim for No-Fault benefits, or the time was tolled by issuing a proper verification request. Jul & Pol Corp. v. American Transit Insurance, 2003 N.Y. Slip 51153 (U) (App. Term, 2nd and 11th Jud. Distr., July 9, 2003). The Regulations permit an insurer to deny a claim for a number of reasons, including for lack of medical necessity. 11NYCRR 65-3.8, specifically states: If the specific reason for a denial of a no-fault claim, or any element thereof, is a medical examination or a peer review report requested by the insurers, the insurer shall release a copy of that report to the applicant for benefits, the applicant’s attorney, or the applicant’s treating physicians, upon the written request of any of these parties. At summary judgment, a defendant may support a defense of lack of medical necessity with a peer review or independent medical exam (IME) report that sets forth a detailed factual basis and medical rationale for the claim’s rejection. Amaze Medical Supply v. Eagle Ins. Co., 2 Misc. 3d 128(A), 2003 N.Y. Slip Op. 51791[U], 2003 WL 23310886 [App. Term, 2d and 11th Jud. Dists. 2003]; S&M Supply Inc. v. Kemper Auto & Home Ins. Co., 2 Misc.3d 134(A), 2004 N.Y. Slip Op. 50209[U], 2004 WL 758247 [App. Term, 2d and 11th Jud. Dists. 2004]. Analysis With respect to Plaintiff’s only cause of action, Defendant Insurer’s affidavit in support of its motion for summary judgment established that the Defendant Insurer timely denied the claims at issue on the grounds of medical necessity.3 Moreover, to support the denial of Plaintiff’s claim, Defendant Insurer attached Dr. Dean’s peer review report which explains after his review the Assignor’s medical records that included Plaintiff’s bills, the medical consultation subjective, objective, assessment plan (SOAP) report from the assignor’s treating physician Allan Weissman, MD and chiropractor from JK Spine Health Chiropractic, P.C., and two pain fiber sensory nerve conduction reports. Dr. Dean concluded that there is “no clear indication for the necessity of the bevy of prescribed medical equipment so early in [assignor's] care,”4 “[t]here is limited evidence said equipment was a necessity in the claimant’s plan of care prior to other general conservative modalities.”5 Consequently, Defendant Insurer established its prima facie entitlement to summary judgment on the cause of action. Once an insurer makes a prima facie showing of lack of medical necessity, the ultimate burden falls upon the provider to prove that the services were medically necessary. See Dayan v. Allstate Ins. Co., 49 Misc. 3D 151(A) (App. Term 2d., 11th and 13th Jud. Dists. 2015). Here, Plaintiff did not meet its burden and failed to raise a triable issue of fact. The Plaintiff did not submit any evidence to show that the medical equipment tendered to Assignor was medically necessary. An affirmation from a doctor rebutting the conclusions set forth in Dr. Dean’s peer review report could have raised a triable issue of fact. See A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Mis. 3D 131 (A), 2007, N.Y. Slip Op. 51342 (U) (App. Term, 2d &11th Jud. Dists. 2007). Instead, Plaintiff asserts Dr. Dean’s peer review report was inadmissible evidence since it contained Dr. Dean’s electronic signature, without any other indication why Plaintiff believed Dr. Dean’s signature was electronic. Plaintiff’s conclusory assertion about Dr. Dean’s signature does not give rise to an issue of fact. Ortho-Med. Surgical Supply, Inc. v. Mercury Cas. Co., 27 Misc. 3d 128 (A), 2010 N.Y. Slip. Op. 50587 (U). Plaintiff’s argument that Dr. Dean’s peer review report must contain an express grant of his permission to use his electronic signature or a provision that Dr. Dean’s electronic signature is equivalent of his holographic signature in accord with Vista Surgical Supplies, Inc. v. Travelers Ins. Co., 50 A.D.3d 778 (2d Dep’t. 2008) is not persuasive. Plaintiff failed to provide support for its assertion that Dr. Dean’s signature was electronic to trigger an analysis of whether Dr. Dean’s peer review contained any grant of authority to use his holographic signature. Further, Plaintiff avers that Dr. Dean’s peer review report is speculative since the Assignor’s medical records were not attached to the peer review report. To support its opposition, Plaintiff relies on Santoni v. Bertelsmann Prop., Inc. 21 A.D.3d 712 (1st Dep’t, 2005) [reversed an Order denying summary judgment and dismissing an action for personal injury related to a malfunctioning elevator]. In Santoni, the Court held that plaintiff failed to raise a triable issue of fact and found that plaintiff’s expert’s opinion was speculative since it was not based on any personal knowledge of the alleged faulty elevator. Here, the peer review report itemizes the Assignor’s medical reports Dr. Dean reviewed to make his decision.6 Further, the Second Department has held medical reports and third party records reviewed in the preparation of the peer review report are not part of the defendant insurer’s prima facie showing to deny first party benefits for a lack of medical necessity. See Active Imaging, P.C. v. Progressive Northeastern Ins. Co., 29 Misc. 3D 130 (A), 918 N.Y.S. 2D 396, 2010 NY Misc. LEXIS 5198, 2010 NY Slip. Op. 51842(U) (N.Y. App. Term Oct. 2010). Dr. Dean’s peer review report is admissible without the medical reports or third party records attached. Further, the Plaintiff failed to rebut any facts attested to about Assignor’s medical condition or the use of the prescribed medical equipment in Defendant Insurer’s peer review report. See Dayan v. Allstate Ins. Co., 49 Misc. 3D 151(A) (App. Term 2d., 11th and 13th Jud. Dists. 2015). Plaintiff further relies on Scott v. Long Island Power Auth., 294 A.d.2d 348 (2nd Dep’t, 2002) and Bassuk Bros. v. Utica First Ins. Co., 2002 NY SLIP. OP. 40508 (U) (Sup. Ct., Kings Cty., 2002) to ask this Court not to engage in weighing evidence and not to resolve “key issues in dispute that turn upon questions of credibility” by summary judgment.7 However, since Plaintiff failed to rebut any facts about the Assignor’s medical condition or the medical need for the proscribed medical equipment, the facts are no longer in dispute. See Dayan v. Allstate Ins. Co., 49 Misc. 3D 151(A) (App. Term 2d., 11th and 13th Jud. Dists. 2015). Finally, Plaintiff’s request for the Court to consider In re Estate of Avrutine, 20 Misc. 2d 107 (Sur. Ct., New York City 1959) is misplaced since it does not address the issues presented in the instant case. In In re Estate of Avrutine, the Court denied a contested summary judgment motion that raised “the issues of fraud and undue influence in a probate proceeding” and acknowledged granting summary judgment is “rare in a probate proceeding.” Id. In contrast, Plaintiff’s opposition to Defendant’s motion for summary judgment does not allege fraud that would undermine the authenticity of Dr. Dean’s peer review report. Here, Plaintiff opposes Defendant’s motion for summary judgment on Plaintiff’s conclusory assertion that Dr. Dean’s peer review report contained an electronic signature and as such, Dr. Dean’s peer review report is inadmissible evidence to support Defendant’s motion for summary judgment. Accordingly, Defendant’s motion for summary judgment is granted and Plaintiff’s complaint is dismissed. This constitutes the Decision and Order of the Court. Dated: June 5, 2020
