August 31, 2012

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2012 NY Slip Op 51702(U))

Headnote

The court considered an appeal from a provider seeking to recover assigned first-party no-fault benefits, where the provider appealed an order denying its motion for summary judgment and granting the defendant's cross motion for summary judgment. The main issue decided was whether the defendant's affidavit established the timely mailing of the denial of claim forms and whether the defendant's submission of a sworn independent medical examination report that set forth a medical rationale for the denial of claims was sufficient to entitle the defendant to summary judgment. The holding of the court was that the affidavit submitted by the defendant established the timely mailing of the denial of claim forms and that the defendant's submission of a sworn independent medical examination report, which was not rebutted by the plaintiff, was sufficient to entitle the defendant to summary judgment dismissing the complaint. Therefore, the judgment of the lower court was affirmed.

Reported in New York Official Reports at Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2012 NY Slip Op 51702(U))

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2012 NY Slip Op 51702(U)) [*1]

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

2012 NY Slip Op 51702(U) [36 Misc 3d 152(A)]

Decided on August 31, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2866 K C.

Axis Chiropractic, PLLC as Assignee of NISON PINKHASOV, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2010, deemed from a judgment of the same court entered August 10, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted a [*2]sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012