Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co.

[*1] Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. 2010 NY Slip Op 51771(U) [29 Misc 3d 129(A)] Decided on October 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1378 Q C.



against

Park Slope Medical and Surgical Supply, Inc. as Assignee of YEVGENY YAACOBI, Respondent, 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 April 21, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 21, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $975.

ORDERED that the judgment is reversed without costs, the order 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, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, based upon an affirmed peer review report, that the medical equipment provided to plaintiff's assignor was not medically necessary. In an order dated April 21, 2009, the Civil Court granted plaintiff's motion, concluding that plaintiff had established its entitlement to judgment as a matter of law and that defendant's affidavit in opposition to the motion failed to establish that defendant timely denied the claim. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant's contention, the affidavit by plaintiff's billing manager was sufficient to demonstrate 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]). The affidavit submitted by defendant's claims division employee established that defendant's denial of claim form, which denied plaintiff's claim due to, among other things, a lack of medical necessity, had been timely mailed in accordance with [*2]defendant's standard office practices and procedures (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 also annexed a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor's conclusion that the supplies were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]). Consequently, plaintiff's motion for summary judgment should have been denied.

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

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010