W.H.O. Acupuncture, P.C. v GEICO Indem. Co.

[*1] W.H.O. Acupuncture, P.C. v GEICO Indem. Co. 2017 NY Slip Op 51900(U) Decided on December 22, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1887 Q C

W.H.O. Acupuncture, P.C., as Assignee of Alexander, Amanda, Respondent,

against

GEICO Indemnity Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered May 8, 2015. The order, insofar as appealed from, denied the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant's cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 on the ground that these claims lacked medical necessity.

In support of the branch of its cross motion at issue, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted a sworn report from the acupuncturist who had performed an independent medical examination of plaintiff's assignor before the services at issue had been rendered, which report set forth a factual basis and medical rationale for the [*2]acupuncturist's conclusion that there was a lack of medical necessity for further treatment (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 Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]). Defendant's prima facie showing was not rebutted by plaintiff.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017