Total Equipment LLC v. State Farm Fire & Casualty Co., 35 Misc. 3d 472

Defendant moved for summary judgment in a no-fault action, contending lack of medical necessity, supported by Portnoy’s peer-review report.
Plaintiff opposed with Kupferman’s rebuttal peer-review report from a non-treating doctor.
Defendant’s prior motion had been denied without prejudice to renewal after production of medical records reviewed by Portnoy, produced June 22, 2011.
Defendant demonstrated timely denial of plaintiff’s no-fault claim via affidavits showing mailed denial in accordance with standard practices.
Appellate Term basis: prima facie showing does not require the underlying medical records; plaintiff may obtain records for meaningful opposition, but here plaintiff failed to submit them.
Court granted defendant’s motion and dismissed the action for lack of triable medical-necessity issues, noting plaintiff’s naked rebuttal and absence of underlying records undermine opposition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness and sufficiency of defendant’s prima facie showing	Portnoy’s opinion lacks underlying records to support medical-necessity denial	Prima facie denial shown without needing underlying records	No triable issue; defendant entitled to judgment as a matter of law
Effect of plaintiff’s rebuttal without underlying records	Kupferman’s review raises material questions of fact	Rebuttal insufficient without the reviewed records	No triable issue; naked rebuttal insufficient to defeat motion

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 (2d Dept 2008) (no-fault denial timely shown by affidavits; supports summary judgment)