Crotona Hgts. Med., P.C. v GEICO Ins. Co. (2009 NY Slip Op 52466(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 10, 2008. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon its third and fourth causes of action is denied, and defendant’s cross motion for summary judgment is granted to the extent of dismissing said causes of action; as so modified, the order is affirmed without costs.

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. After the action was commenced, defendant paid the claims and accrued interest underlying plaintiff’s first and second causes of action. The Civil Court granted plaintiff’s motion for summary judgment, awarding plaintiff attorney’s fees and costs on its first and second causes of action, and judgment upon its third and fourth causes of action. The court implicitly denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Defendant’s assertion that plaintiff failed to prove submission of its claims to defendant lacks merit.

With respect to plaintiff’s third and fourth causes of action, defendant established that it had timely denied the claims at issue on the ground of lack of medical necessity (see St. Vincent’s [*2]Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In support of its cross motion for summary judgment, defendant annexed, inter alia, an affirmed peer review report, which set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services rendered, which assertion was unrebutted (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]). Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff’s third and fourth causes of action, and plaintiff failed to raise a triable issue of fact with respect thereto. Accordingly, the branch of plaintiff’s motion seeking summary judgment upon its third and fourth causes of action is denied and defendant’s cross motion for summary judgment dismissing plaintiff’s third and fourth causes of action is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 07, 2009