Quality Health Prods. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51118(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. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for assignors Lony Beatris, Francois Stevenson and Milord Guerson. The appeal is deemed to have been taken from so much of a judgment of the same court entered November 3, 2010 as dismissed that portion of the complaint (see CPLR 5501 [c]).

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for assignors Lony Beatris, Francois Stevenson and Milord Guerson. The appeal is deemed to have been taken from so much of a judgment that was subsequently entered as dismissed that portion of the complaint (see CPLR 5501 [c]).

Contrary to plaintiff’s arguments on appeal, defendant established the mailing of the [*2]denials at issue (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]), as well as the factual basis and medical rationale for the determinations that there was a lack of medical necessity for the supplies provided to each of the three aforementioned assignors (see e.g. 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]). Plaintiff did not submit any medical evidence to rebut defendant’s prima facie showing of a lack of medical necessity (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]). The remainder of plaintiff’s arguments on appeal lack merit (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]).

Accordingly, the judgment, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013