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

[*1] Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. 2010 NY Slip Op 50445(U) [26 Misc 3d 144(A)] Decided on March 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2008-2044 Q C.

Right Aid Diagnostic Medicine, P.C. as assignee of Tarshia Harrison, Respondent,

against

Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,791.71.

ORDERED that the judgment is reversed without costs, the order entered October 3, 2008 granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied. In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to plaintiff's motion for summary judgment, that plaintiff had failed to establish a prima facie case, and that, in any event, defendant paid the claim seeking the sum of $879.72 and that there was a lack of medical necessity for the MRI which was the subject of plaintiff's $911.99 claim. By order entered October 3, 2008, the Civil Court granted plaintiff's motion, and defendant appeals therefrom. A judgment was subsequently entered from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Since the affidavit of defendant's claims representative conceded receipt of the claim in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff's billing manager established that the documents annexed to plaintiff's motion 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]), plaintiff's prima facie entitlement to summary judgment was established.

In opposition to the motion, defendant established that it had timely mailed its denial of [*2]claim form, which denied plaintiff's $911.99 claim on the ground of lack of medical necessity, by submitting an affidavit of an employee with knowledge of defendant's standard office practices or procedures designed to ensure that items are properly addressed and mailed (see e.g. St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also annexed a copy of the affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the MRI was not medically necessary (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). In addition, defendant presented sufficient evidence to raise a question of fact as to whether defendant had already paid plaintiff's claim seeking the sum of $879.72. As a result, defendant raised triable issues of fact so as to warrant the denial of plaintiff's motion for summary judgment.

Accordingly, the judgment is reversed, the order entered October 3, 2008 granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

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

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010