Metropolitan Med. Supplies, LLC v GEICO Ins. Co. (2010 NY Slip Op 50066(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 October 8, 2008. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third causes of action. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $708.37 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s
second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s second and third causes of action. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claims on the grounds that the supplies provided were medically unnecessary and that the fees charged by plaintiff were excessive (see 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 opposition to the branch of plaintiff’s [*2]motion for summary judgment upon plaintiff’s second cause of action, defendant raised a triable issue of fact by annexing an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that the medical supplies at issue in said cause of action were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, in opposition to the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s third cause of action, defendant established that there was an issue of fact as to whether the fees charged by plaintiff were excessive.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010