December 19, 2011

Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co. (2011 NY Slip Op 52301(U))

Headnote

The court considered the plaintiff's motion for summary judgment and the defendant's cross motion for summary judgment in a case to recover assigned first-party no-fault benefits. The court found that the plaintiff had established its prima facie case, but that the sole issue for trial was the medical necessity of the services rendered to the plaintiff's assignor. The main issue decided was whether there was a lack of medical necessity for the services rendered, and the court found in favor of the defendant, as the defendant's showing of a lack of medical necessity was not rebutted by the plaintiff. Therefore, the court reversed the order and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co. (2011 NY Slip Op 52301(U))

Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co. (2011 NY Slip Op 52301(U)) [*1]

Ave P Rehab & Med. Plaza, P.C. v Geico Ins. Co.

2011 NY Slip Op 52301(U) [34 Misc 3d 129(A)]

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2183 K C.

Ave P Rehab & Medical Plaza, P.C. as Assignee of AZEMA BRUNEL, Respondent,
against
Geico Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 26, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, three affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the doctors’ determination that there was a lack of medical necessity for the services rendered. Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (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, 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]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 19, 2011