Rogy Med., P.C. v Geico Ins. Co. (2011 NY Slip Op 50990(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 19, 2009, deemed from a judgment of the same court entered December 23, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,971.57.

ORDERED that the judgment is reversed, without costs, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the grounds that the services rendered lacked medical necessity and that the provider billed in excess of the workers’ compensation fee schedule. By order entered November 19, 2009, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

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

Defendant established that the denial of claim forms at issue were timely mailed in accordance with defendant’s standard office practices and procedures (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]). With respect to the claim at issue in plaintiff’s first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a [*2]factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff’s first cause of action (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]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker’s compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 26, 2011