November 26, 2010

Triangle R, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52060(U))

Headnote

The court considered the fact that the defendant's denial of claim form was "timely and proper," and that the sole issue to be determined at trial was the medical necessity of the medical equipment at issue. The main issue decided was whether the medical equipment at issue was medically necessary, and the holding of the court was that the defendant's cross motion for summary judgment dismissing the complaint should have been granted because the defendant's showing that the equipment was not medically necessary was unrebutted by the plaintiff. The court referenced previous cases where similar issues were decided in favor of the insurance company based on lack of medical necessity. Therefore, the court reversed the order of the Civil Court and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Triangle R, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52060(U))

Triangle R, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52060(U)) [*1]

Triangle R, Inc. v GEICO Ins. Co.

2010 NY Slip Op 52060(U) [29 Misc 3d 139(A)]

Decided on November 26, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1782 Q C.

Triangle R, Inc. as Assignee of ROY ENCARNACION, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that defendant’s denial of claim form was “timely and proper,” and that the sole issue to be determined at trial was the medical necessity of the medical equipment at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical equipment at issue. Defendant’s showing that the equipment was not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial was “timely and proper,” a finding which plaintiff has not disputed on appeal, defendant’s cross motion for summary judgment dismissing the complaint 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 & 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: November 26, 2010