October 21, 2005

D.A.V. Chiropractic P.C. v GEICO Ins. (2005 NY Slip Op 51746(U))

Headnote

The court considered the plaintiff's motion for partial summary judgment in a case where D.A.V. Chiropractic P.C. sought first-party no-fault benefits for medical supplies furnished to its assignor. The main issue was whether the plaintiff had established a prima facie entitlement to summary judgment and whether the defendant's denial of claim forms, with unaffirmed peer reviews attached, raised a triable issue of fact regarding medical necessity. The court held that while the plaintiff had established a prima facie entitlement to summary judgment, the defendant's reliance on unaffirmed peer reviews which contained a sufficient factual basis and medical rationale raised a triable issue of fact regarding medical necessity, warranting the denial of the plaintiff's motion for partial summary judgment. The appeal made by plaintiff Daniel Kim's Acupuncture P.C. was dismissed.

Reported in New York Official Reports at D.A.V. Chiropractic P.C. v GEICO Ins. (2005 NY Slip Op 51746(U))

D.A.V. Chiropractic P.C. v GEICO Ins. (2005 NY Slip Op 51746(U)) [*1]

D.A.V. Chiropractic P.C. v GEICO Ins.

2005 NY Slip Op 51746(U) [9 Misc 3d 138(A)]

Decided on October 21, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-943 K C

D.A.V. Chiropractic P.C., DANIEL KIM’S ACUPUNCTURE P.C., a/a/o Evelyn Domond, Appellants,
against
GEICO Insurance, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Nadelson, J.), entered June 14, 2004, denying their motion for partial summary judgment in favor of D.A.V. Chiropractic P.C.

Appeal as taken by plaintiff Daniel Kim’s Acupuncture P.C. unanimously dismissed.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff D.A.V. Chiropractic P.C. established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the [*2]
amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiff, however, also submitted and relied upon defendant’s denial of claim forms which had unaffirmed peer reviews attached thereto. In opposition to the motion, defendant likewise relied upon said unaffirmed peer reviews which contained a sufficient factual basis and medical rationale so as to raise a triable issue of fact regarding medical necessity (see Pagano v Kingsbury, 182 AD2d 268 [1992]; Triboro Chiropractic & Acupuncture v Electric Ins. Co., 2 Misc 3d 135[A], 2004 NY Slip Op 50215[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiffs’ motion for partial summary judgment was properly denied.

Inasmuch as plaintiff Daniel Kim’s Acupuncture P.C. does not appear to be an aggrieved party, the appeal as taken by it is dismissed (CPLR 5511).
Decision Date: October 21, 2005