Shahid Mian, M.D., P.C. v Interboro Ins. Co., 2013 NY Slip Op 50589(U)(App. Term. 1st Dept. 2013)
“In opposition to the defendant-insurer’s prima facie showing that the assignor’s treated medical condition was not causally related to the underlying motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 ), plaintiff failed to raise a material issue requiring a trial of its claim for assigned no-fault first-party benefits. The bare bones affidavit filed by plaintiff’s principal, an orthopedist who performed the surgical procedure giving rise to this no-fault action, was insufficient to defeat summary judgment. The affiant failed to set forth a factual basis for his single-sentence conclusion on the critical causation issue, and did not address, let alone rebut, the contrary findings made by defendant’s medical experts.”
This was my case. The defense was based upon a radiological review and a peer review, based upon the radiological review and plaintiff’s medical records. For those that remember Stephen Fealy v. State Farm, the affidavit, in rebuttal in this case, was better than the affidavit in rebuttal case. Note my comment in Amherst Medical Supply, where the court evaluated these cases under a 5102(d) prism.