Pomona Med. Diagnostics, P.C. v GEICO Ins. Co.

[*1] Pomona Med. Diagnostics, P.C. v GEICO Ins. Co. 2011 NY Slip Op 50276(U) Decided on February 25, 2011 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570687/10.

Pomona Medical Diagnostics, P.C. a/a/o Mijamin Belle, Plaintiff-Respondent,

against

GEICO Insurance Company, Defendant-Appellant.

Defendant appeals, as limited by its brief, from those portions of an order of the Civil Court of the City of New York, Bronx County (Donald Miles, J.), dated November 24, 2009, which (1) granted plaintiff's motion for summary judgment in part, and (2) denied defendant's cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald Miles, J.), dated November 24, 2009, insofar as appealed from, affirmed, without costs.

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 25, 2011