Complete Radiology, P.C. v GEICO Ins. Co.

[*1] Complete Radiology, P.C. v GEICO Ins. Co. 2012 NY Slip Op 50419(U) Decided on March 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-2098 Q C.

Complete Radiology, P.C. as Assignee of JERRELL JACOBS, Appellant, - -

against

GEICO Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 17, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion for summary judgment is denied. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), the affirmed letter of medical necessity submitted by plaintiff's assignor's treating physician was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment of the Civil Court is reversed, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion for summary judgment is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012