Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co.

[*1] Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52635(U) [26 Misc 3d 128(A)] Decided on December 23, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-2101 Q C.

Right Aid Diagnostic Medicine, P.C. as assignee of Jermaine Brown, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered September 30, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $2,693.12 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied and the matter is remitted to the Civil Court for all further
proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment. As limited by its brief, defendant appeals from so much of the order as granted plaintiff's motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]). On appeal, defendant's sole contention with respect to plaintiff's prima facie case is that the affidavit of plaintiff's billing manager failed to establish that the documents annexed to plaintiff's motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Contrary to the finding of the Civil Court, the affidavit of defendant's claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff's claim on the ground that the services rendered were medically unnecessary (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also annexed to the motion papers were affirmed peer review reports which set forth a factual basis and medical rationale for the peer reviewers' opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff's motion for summary judgment should have been denied due to the existence of an issue of fact as to medical necessity.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009