Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50415(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered February 8, 2010, deemed from a judgment of the same court entered April 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 8, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, the affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. While plaintiff asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was [*2]inadmissible, the record indicates that the signature was placed on the report by the doctor who had performed the peer review (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. Thus, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly 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]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment of the Civil Court is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012