Vincent Med. Servs., P.C. v GEICO Ins. Co.

[*1] Vincent Med. Servs., P.C. v GEICO Ins. Co. 2010 NY Slip Op 52153(U) [29 Misc 3d 141(A)] Decided on December 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1634 Q C.

Vincent Medical Services, P.C. as Assignee of BAILEY NIMAL, 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 June 5, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 5, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $5,600.38.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 5, 2009 as granted the branches of plaintiff's motion seeking summary judgment with respect to plaintiff's fourth, sixth, seventh, eighth, ninth and tenth causes of action is vacated, the branches of plaintiff's motion seeking summary judgment with respect to these causes of action are denied, defendant's cross motion for summary judgment dismissing these causes of action is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees with respect to the first, second, third and fifth causes of action and for the entry of judgment thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from an order entered June 5, 2009 granting plaintiff's motion and denying defendant's cross motion. 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 of plaintiff's billing manager established [*2]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]). Since the affidavit of defendant's claims representative conceded receipt of the claim forms at issue, plaintiff made a prima facie showing of its entitlement to summary judgment (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]).

The affidavit submitted by defendant, in opposition to plaintiff's motion and in support of its own cross motion for summary judgment, established that defendant's denial of claim forms pertaining to the claims at issue in the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth causes of action were 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the affidavit failed to address defendant's denial of claim form pertaining to the claim at issue in plaintiff's fifth cause of action. Consequently, defendant did not establish that said denial of claim form was timely mailed and, as a result, defendant is precluded from raising its proffered defenses with respect to plaintiff's fifth cause of action (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

The claims at issue in plaintiff's first, second and third causes of action were denied on the ground that the fees charged were in excess of the workers' compensation fee schedule. The claims at issue in plaintiff's fourth, sixth, seventh, eighth, ninth and tenth causes of action were denied on the ground of lack of medical necessity. Defendant's cross motion for summary judgment dismissing the complaint and its opposition to plaintiff's motion for summary judgment were based on the foregoing defenses.

To the extent that defendant asserted that the fees charged were not in conformity with the workers' compensation fee schedule, defendant did not specify the actual reimbursement rates which formed the basis for its determination that plaintiff had billed in excess of the maximum amount permitted (see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant failed to raise a triable issue of fact, and plaintiff was properly awarded summary judgment, with respect to the first, second and third causes of action.

Defendant submitted an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the conclusion that the treatments at issue in plaintiff's fourth, sixth, seventh, eighth, ninth and tenth causes of action were not medically necessary. The affidavit of plaintiff's treating doctor, submitted in opposition to defendant's cross motion for summary judgment, was insufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered, as it did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME and peer review reports (Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*3]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branches of defendant's cross motion seeking summary judgment dismissing the fourth, sixth, seventh, eighth, ninth and tenth causes of action on the ground of lack of medical necessity should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 08, 2010