Neomy Med., P.C. v GEICO Ins. Co.

[*1] Neomy Med., P.C. v GEICO Ins. Co. 2012 NY Slip Op 51638(U) Decided on August 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1609 K C.

Neomy Medical, P.C. as Assignee of ALESYA DRAGANCHYUK, Respondent, - -

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 17, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer's opinion that there was a lack of medical necessity for the services at issue. In opposition to defendant's cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question 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]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the existence of a triable issue of fact as to the medical necessity of the services in question, [*2]defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J. Weston and Rios, JJ., concur.
Decision Date: August 23, 2012