August 26, 2013

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2013 NY Slip Op 51458(U))

Headnote

The relevant facts the court considered in this case were that a provider was seeking to recover assigned first-party no-fault benefits. The main issue decided was whether the provider had established the fact and amount of the loss sustained, and whether there were triable issues of fact as to the medical necessity of the service provided. The holding of the case was that the court affirmed the order, finding that the plaintiff had indeed established the fact and amount of the loss sustained, and that there were triable issues of fact as to the medical necessity of the service provided. The order directed that a trial be held on the issue of medical necessity.

Reported in New York Official Reports at Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2013 NY Slip Op 51458(U))

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2013 NY Slip Op 51458(U)) [*1]

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

2013 NY Slip Op 51458(U) [40 Misc 3d 140(A)]

Decided on August 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2453 K C.

Right Aid Diagnostic Medicine, P.C. as Assignee of JANETT E. KIRBY, Respondent, —
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 16, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the fact and amount of the loss sustained.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the fact and the amount of the loss sustained.

Contrary to defendant’s argument on appeal, plaintiff established the fact and amount of the loss sustained by demonstrating that the claim form at issue is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein. Consequently, we do not disturb that finding. We note that, contrary to defendant’s argument on appeal, the order did not find that plaintiff had established, for all purposes in the action, that defendant had not timely denied the claim or had issued a claim that was conclusory, vague, or without merit as a matter of law, as the order directs that a trial be held on the issue of medical necessity.

Moreover, upon the record before us, which, contrary to defendant’s assertion on appeal, includes an affidavit of a doctor, submitted by plaintiff in opposition to defendant’s cross motion, we find that there are triable issues of fact as to the medical necessity of the service provided.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 26, 2013