Vinings Spinal Diagnostic, P.C. v Geico Gen. Ins. Co.

[*1] Vinings Spinal Diagnostic, P.C. v Geico Gen. Ins. Co. 2010 NY Slip Op 51897(U) [29 Misc 3d 132(A)] Decided on November 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., TANENBAUM and LaCAVA, JJ
2009-1501 N C.

Vinings Spinal Diagnostic, P.C. as Assignee of ATHINA PAPANTONIOU, Respondent,

against

Geico General Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated May 1, 2009, deemed from a judgment of the same court entered May 29, 2009 (see CPLR 5512). The judgment, entered pursuant to the May 1, 2009 order which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $4,237.97.

ORDERED that the judgment is reversed without costs, so much of the order dated May 1, 2009 as granted 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. Defendant opposed the motion on the ground that the services at issue were not medically necessary and cross-moved for summary judgment dismissing the complaint. By order dated May 1, 2009, the District Court granted plaintiff's motion and denied defendant's cross motion. After judgment was entered, defendant appealed from the order. We deem the appeal to be from the judgment (see CPLR 5512).

Since defendant raises no issue as to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the determination of the District Court with respect thereto.

The affidavit submitted by defendant's claims division employee established that the denial of claim form, which denied plaintiff's claim on the ground of lack of medical necessity, was timely mailed in accordance with 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]). Consequently, defendant preserved its defense of lack of medical necessity.

While the affirmed peer review report by defendant's doctor set forth a factual basis and medical rationale for the doctor's opinion that the services provided were not medically necessary (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]), plaintiff proffered an affidavit in admissible form from its owner, a chiropractor, which meaningfully referred to defendant's peer review [*2]report and sufficiently rebutted the conclusions set forth therein. Consequently, a triable issue of fact as to medical necessity has been shown to exist.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010