February 21, 2012

New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50346(U))

Headnote

The relevant facts the court considered were that the plaintiff, New Life Medical, P.C., was seeking to recover assigned first-party no-fault benefits from defendant Geico Ins. Co. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding that the sole issue for trial was the medical necessity of the services provided to plaintiff's assignor. On appeal, defendant argued that it was entitled to summary judgment based on lack of medical necessity and submitted peer review reports to support this argument. The main issue decided by the court was whether the defendant was entitled to summary judgment based on lack of medical necessity for the services provided. The holding of the court was that defendant's cross motion for summary judgment dismissing the complaint was granted. The court found that the plaintiff's healthcare practitioner's affidavit failed to rebut the conclusions set forth in the peer review reports, and as plaintiff did not challenge the finding that defendant was otherwise entitled to judgment, defendant's motion for summary judgment was granted. Therefore, the court reversed the decision of the Civil Court and granted defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50346(U))

New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50346(U)) [*1]

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

2012 NY Slip Op 50346(U) [34 Misc 3d 154(A)]

Decided on February 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2012

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
. ———————————— 1;———————————— 151;———————————— ———————-x

New Life Medical, P.C. as Assignee of CHRISTINA SARGEANT, Respondent, —
against
Geico Ins. Co., Appellant. ———————————— 1;———————————— 151;———————————— ———————-x

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 denied the motion and cross motion, and found that the sole issue for trial was the medical necessity of the services provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross [*2]motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 21, 2012