June 17, 2013

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51034(U))

Headnote

The court considered the denial of first-party no-fault benefits, based on a lack of medical necessity, to a provider by an insurance company. The insurance company timely denied the claim and submitted an affirmed peer review report stating the lack of medical necessity for the services at issue. The main issue was whether the insurance company's showing that the services were not medically necessary was rebutted by the provider. The holding was that the insurance company's cross motion for summary judgment dismissing the complaint should have been granted, as the provider did not rebut the showing that the services were not medically necessary. Therefore, the order denying the insurance company's cross motion was reversed and the cross motion was granted.

Reported in New York Official Reports at Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51034(U))

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51034(U)) [*1]

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co.

2013 NY Slip Op 51034(U) [40 Misc 3d 127(A)]

Decided on June 17, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2355 K C.

Right Aid Diagnostic Medicine, P.C. as Assignee of PREM BALKARAN, Respondent, —
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings

County (Nancy M. Bannon, J.), entered May 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion papers established that defendant had timely denied the claim 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]) based on a lack of medical necessity. In addition, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been 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 & [*2]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]). In light of the foregoing, we reach no other issue.

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 2013