Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co.

[*1] Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co. 2010 NY Slip Op 51332(U) [28 Misc 3d 132(A)] Decided on July 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 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
2007-1141 K C. NO. 2007-1141 K C

Alfa Medical Supplies, Inc. as assignee of Zoila Correa and MIRIAM SOTO, Respondent,

against

GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered January 8, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment as to plaintiff's claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. The appeal is deemed from a judgment of the same court entered May 25, 2007 which awarded plaintiff the principal sum of $2,295 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff's motion for summary judgment as to plaintiff's claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto is vacated and plaintiff's motion for summary judgment as to said claims is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that there was a lack of medical necessity for the supplies provided to plaintiff's assignors. The Civil Court granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. This appeal by defendant ensued. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Contrary to defendant's contention, the affidavit of plaintiff's employee was sufficient to establish that the documents annexed to plaintiff's motion papers constituted evidence in admissible form 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 [*2]Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5102 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff's motion, defendant established that it had timely denied the claims at issue on the ground of lack of medical necessity (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]). Defendant annexed to its opposing papers affirmed peer review reports, which set forth a factual basis and medical rationale for the doctor's determinations that there was a lack of medical necessity for the supplies at issue, which evidence was unrebutted. In view of the foregoing, and as plaintiff's remaining contentions lack merit (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), plaintiff's motion for summary judgment as to its claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto should have been denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate decision reached by the majority, I wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my expressed position and generally contrary to my views.
Decision Date: July 22, 2010