March 10, 2010

Favorite Health Prods., Inc. v Geico Ins. Co. (2010 NY Slip Op 50453(U))

Headnote

The court considered a case where a provider was seeking to recover first-party no-fault benefits, and defendant insurance company denying the claims on grounds of lack of medical necessity. The main issue was whether there was a lack of medical necessity for the medical supplies at issue, and whether the defendant was entitled to summary judgment dismissing the complaint. The court held that the defendant had established timely mailing of the denial of claim forms, and had submitted peer review reports showing lack of medical necessity, which was unrebutted by the plaintiff. Therefore, the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Favorite Health Prods., Inc. v Geico Ins. Co. (2010 NY Slip Op 50453(U))

Favorite Health Prods., Inc. v Geico Ins. Co. (2010 NY Slip Op 50453(U)) [*1]

Favorite Health Prods., Inc. v Geico Ins. Co.

2010 NY Slip Op 50453(U) [26 Misc 3d 145(A)]

Decided on March 10, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-660 Q C.

Favorite Health Products, Inc. as assignee of Jeoniel Michel, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 16, 2009. The order, insofar as appealed from, 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 denied both motions, holding that the sole issue to be determined at trial was medical necessity for the supplies at issue. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see St. Vincent’s 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]) the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant submitted, among other things, two sworn peer review reports, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue (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 [*2]Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.

Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010