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Judge Ciaffa http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=126949 Defendant insurer moved for summary judgment dismissing plaintiff’s no-fault claim based on a defense of lack of medical necessity. Plaintiff admitted receipt of defendant’s denial, but asserted it was untimely. But no affirmative allegation was made that the denial was received on or after a certain date. Further, the court found plaintiff failed to retain and preserve the envelope containing the denial, which included evidence of a date of postmarking, thus the court could properly draw an adverse inference. It ruled the timeliness of defendant’s mailing was not a legitimate issue for dispute. Regardless, the court noted defendant relied on the affidavit and peer review report of Dr. Portnoy to support its defense. It stated the report set forth a factual basis and medical rationale for the denial, but never specifically addressed the treating doctor’s stated basis for the MRI. The court also noted Portnoy failed to cite specific medical authority that an MRI was contraindicated for a patient still suffering from a cervical trauma nearly two months post-accident. It opined Portnoy failed to explain how the MRI could be medically unnecessary when it yielded positive findings and ruled the report failed to prove defendant’s entitlement to judgment.

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