Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51858(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered March 16, 2007, deemed from a judgment of said court entered April 23, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 15, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $826.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a medical equipment provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant asserted
that the medical equipment furnished by plaintiff was not medically necessary as per a peer review report. The court granted plaintiff’s motion for summary judgment, and defendant appeals.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The affidavit submitted by defendant’s claims representative was sufficient to give rise to a presumption that the denial of claim form at issue was mailed in accordance with defendant’s standard office practice and procedure (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]). Since defendant’s timely denial of claim form stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary, it is sufficient to avoid preclusion of the defense of [*2]lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affidavit by the chiropractor who executed the peer review report which set forth a factual basis and medical rationale for his opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rios, J.P., and Pesce, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : RIOS, J.P., PESCE and GOLIA, JJ.
ORTHOTIC SURGICAL & MEDICAL SUPPLY, INC.
as assignee of LUNA YARITZA,

Respondent,

-against- [*3]
GEICO INS. CO.,

Appellant.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: September 02, 2008