January 24, 2012

New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50150(U))

Headnote

The court considered that in an action by a healthcare provider to recover no-fault insurance benefits, the plaintiff moved for summary judgment and the defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that both parties had established their prima facie cases and that the only issue for trial was the medical necessity of the services rendered to the plaintiff's assignor. The defendant submitted peer review reports to support their cross motion, each of which provided a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services rendered. In response, the plaintiff submitted an affirmation from a doctor that failed to meaningfully rebut the conclusions in the peer review reports. The court held that as the plaintiff had not challenged the finding that the defendant was otherwise entitled to judgment, the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50150(U))

New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50150(U)) [*1]

New Life Med., P.C. v Geico Ins. Co.

2012 NY Slip Op 50150(U) [34 Misc 3d 145(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This opinion is uncorrected and will not be published in the printed Official Reports.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: : GOLIA, J.P., WESTON and RIOS, JJ
2010-2074 K C.

New Life Medical, P.C. as Assignee of ELLA EYSHINSKAYA, Respondent,
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 15, 2009. The order, insofar as appealed from as limited by the brief, 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 found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see 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]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (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]).

Golia, J.P., Weston and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012