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

[*1] Neomy Med., P.C. v GEICO Ins. Co. 2010 NY Slip Op 51252(U) [28 Misc 3d 130(A)] Decided on July 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1068 K C.

Neomy Medical, P.C. as Assignee of MARGARETH LAMOUR, Respondent,

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 4, 2009. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment, asserting the defenses of lack of medical necessity and that plaintiff sought to recover amounts in excess of the workers' compensation fee schedule. Finding that plaintiff had established a prima facie case and that defendant had failed to establish that its denial of claim forms were timely mailed, the Civil Court granted plaintiff's motion and denied defendant's cross motion. This appeal ensued.

Contrary to the determination of the Civil Court, defendant demonstrated that the denial of claim forms at issue, which were annexed to its cross motion, were timely mailed (see 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]).

In support of its cross motion, defendant annexed a copy of its denial of claim form which [*2]denied plaintiff's claim for services rendered on April 6, 2006 on the ground of lack of medical necessity, as well as an affirmed peer review report which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for such services. As a result, defendant made a prima facie showing of its entitlement to summary judgment with respect to this claim form (see 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]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]). With respect to the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of bills for services rendered on March 14, 2006, which claims were timely denied on the ground that the unpaid portion exceeded the amount permitted by the workers' compensation fee schedule, we find that defendant made a prima facie showing of its entitlement to judgment thereon. As plaintiff failed to rebut defendant's prima facie showings, and plaintiff's remaining contentions are either raised for the first time on appeal or lack merit, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 16, 2010