Opinion
2001-231 Q C.
Decided December 22, 2003.
Appeal by plaintiff from an order of the Civil Court, Queens County (P. O'Donoghue, J.), dated December 6, 2000, which denied its motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
The plaintiff instituted this action under the No-Fault Law to recover for medical services it provided to its assignor. In support of its motion for summary judgment, plaintiff submitted its claim forms and the defendant's denial of the claims based upon an affirmed peer review report submitted by its doctor.
The order denying plaintiffs motion for summary judgment should be affirmed. The plaintiffs prima facie showing was opposed by an affirmed medical report raising a triable issue of fact. The defense of lack of medical necessity may be based either on a medical examination or a sufficiently detailed peer review report, as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8 (b) (4). Here, defendant timely denied plaintiffs no-fault benefits claim following a file-based peer review which, in our view, set forth a factual basis and medical rationale sufficient to create a triable issue as to the treatment's medical necessity ( Rockawav Blvd. Medical P.C. Park Health Ctr. v. Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d 11th Jud Dists]).