Alur Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51867(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 9, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, modified by granting defendant’s cross motion for summary judgment to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

In support of its cross motion for summary judgment, defendant established that it paid $297.50 towards plaintiff’s $311 claim and that it timely denied the balance of said claim on the ground that the fee charged was excessive. Since defendant did not establish as a matter of law that the fee charged was excessive, defendant was not entitled to summary judgment dismissing the balance of said claim. With respect to the claims in the sums of $848 (second cause of action) and $628 (third cause of action), defendant’s affirmed peer review report established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, defendant’s cross motion for summary judgment should have been granted to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action (see 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. [*2]Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s contention, that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, was raised for the first time on appeal and, thus, plaintiff waived any objection thereto (Dowling v Mosey, 32 AD3d 1190 [2006]; cf. Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists 2006]). Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008