August 31, 2012
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51705(U))
Headnote
Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51705(U))
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. |
2012 NY Slip Op 51705(U) [36 Misc 3d 152(A)] |
Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3065 K C.
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 30, 2010, deemed from a judgment of the same court entered August 23, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 30, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed, without costs, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered April 30, 2010 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v [*2]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]), which denied plaintiff’s claim on the ground of lack of medical necessity.
As to the $194.58 billed for a diagnostic interview (procedure code 90801), we find that there is an issue of fact and that, therefore, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $194.58 for procedure code 90801 should have been denied.
As to the remaining three services at issue, defendant submitted a sworn peer review
report which set forth a factual basis and a medical rationale for the psychologist’s
determination that there was a lack of medical necessity for these
services. Since defendant’s prima facie showing as to these three services was not
rebutted by plaintiff, defendant was entitled to summary judgment dismissing so much of
the complaint as sought to recover for these services (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]). Plaintiff’s remaining contentions on appeal as to these services lack merit (see e.g. Urban Radiology, P.C. v
Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]
[App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, we leave undisturbed so
much of the order as granted the branches of defendant’s cross motion seeking summary
judgment dismissing the complaint insofar as it sought to recover for these services.
Accordingly, the judgment is reversed, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon plaintiff’s claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012