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

[*1] Richmond Radiology, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52210(U) [25 Misc 3d 133(A)] Decided on October 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1635 Q C.

Richmond Radiology, P.C. a/a/o ARKADY POLEVOY, Appellant,

against

GEICO Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 1, 2008. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment on the ground that defendant's opposition to the motion had raised a triable issue of fact as to medical necessity.

Contrary to plaintiff's contention on appeal, the doctor performing the peer review did not conclude that he had insufficient information upon which to base a conclusion. Instead, the affirmed report raised a triable issue of fact because "the report clearly indicates that the pertinent [treating] physician's reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer's opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the [services] provided" (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff's motion for summary judgment was properly denied.

We decline defendant's request that we search the record and grant defendant summary [*2]judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Inc. Co., 39 AD3d 832 [2007]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009