May 6, 2013

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50759(U))

Headnote

The court considered the facts of a case brought by B & Y Surgical Supplies, Inc. as the assignee of Rosa Perez, seeking to recover assigned first-party no-fault benefits from Geico General Ins. Co. The main issue was whether Geico General Ins. Co. had timely mailed denials of the two claims at issue on the ground of lack of medical necessity. The holding of the court was that while the papers submitted by Geico General Ins. Co. were sufficient to establish that they had timely mailed denials of the claims, there were triable issues of fact as to the medical necessity of the supplies provided. As a result, the court granted the plaintiff's motion for summary judgment and denied the defendant's cross motion for summary judgment and modified the order by denying the plaintiff's motion for summary judgment as well.

Reported in New York Official Reports at B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50759(U))

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50759(U)) [*1]

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50759(U) [39 Misc 3d 141(A)]

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1574 K C.

B & Y Surgical Supplies, Inc. as Assignee of ROSA PEREZ, Respondent, —
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely mailed (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]) denials of the two claims at issue, which denied the claims on the ground of lack of medical necessity. However, on the record before us, we find that there are triable issues of fact as to the medical necessity of the supplies provided. [*2]Therefore, while the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint, plaintiff’s motion for summary judgment should also have been denied.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013