June 11, 2012

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))

Headnote

The case involved an action by a provider to recover assigned first-party no-fault benefits. The defendant, an insurance company, had denied the plaintiff's claims on the ground of lack of medical necessity, and filed a cross motion for summary judgment dismissing the complaint. The main issue was whether the defendant's denial of the claims was valid, and the admissibility of the peer review reports submitted as evidence in support of the cross motion for summary judgment. The court held that the affidavit executed by the defendant's claims examiner was sufficient to establish that the denial forms had been timely mailed, but the peer review reports were not admissible as they were affirmed by a psychologist, which is not permissible, and failed to meet the requirements of CPLR 2309 (b). Therefore, the cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U)) [*1]

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co.

2012 NY Slip Op 51057(U) [35 Misc 3d 146(A)]

Decided on June 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-1898 K C.

Five Boro Psychological Services, P.C. as Assignee of IVORY DARQUWAN, HECTOR ESPINAL and TASHEIA BYNES, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 27, 2010. The order, insofar as appealed from as limited by the brief, granted 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 denied.

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

The affidavit executed by defendant’s claims examiner was sufficient to establish that defendant’s NF-10 forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been 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]). Plaintiff argues on appeal, as it did in the [*2]Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

As defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012