January 24, 2012

Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))

Headnote

The court considered the timely denial of a claim on the grounds of lack of medical necessity, as established by the defendant through an affirmed peer review report. Defendant appealed from an order that denied its cross motion for summary judgment dismissing the complaint brought by the provider to recover assigned first-party no-fault benefits. The main issue was whether the provider had sufficiently demonstrated the existence of a question of fact as to medical necessity, with the burden shifted to the plaintiff to rebut defendant's prima facie showing. The holding was that defendant's cross motion for summary judgment was properly denied, as the plaintiff's submission of an affidavit of its doctor sufficiently demonstrated the existence of a question of fact as to medical necessity.

Reported in New York Official Reports at Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))

Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U)) [*1]

Neomy Med., P.C. v Geico Ins. Co.

2012 NY Slip Op 50145(U) [34 Misc 3d 144(A)]

Decided on January 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1482 K C.

Neomy Medical, P.C. as Assignee of ALBERT BOOKAL, Respondent,
against
Geico Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 2, 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 affirmed, without costs,

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely denied the claim (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]) on the ground of lack of medical necessity. The papers submitted in support of defendant’s cross motion for summary judgment included an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012