Velen Med. Supply, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50735(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, Kings County (Bernard J. Graham, J.), entered January 17, 2007, deemed from a judgment of the same court entered April 4, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 17, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $815.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claim on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, finding that plaintiff had established a prima facie case and that defendant had failed to raise a triable issue of fact. This appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

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

The affidavit submitted by defendant’s claims employee was sufficient to establish that defendant’s denial of claim form, which denied plaintiff’s claim based upon a peer review report, was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to plaintiff’s motion for summary judgment, defendant annexed an affirmed peer [*2]review report, which set forth the physician’s opinion that the medical supplies at issue were medically unnecessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists2007]).

Plaintiff’s contention that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, raised for the first time on appeal, was waived (see Dowling v Mosey, 32 AD3d 1190 [2006]; Alur Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]).

Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J. and Weston, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut. Cas. Co. (20 Misc 3d 135[A], 2008 NY Slip Op 51501[U] [App Term, 2d & 11th Jud Dists 2008]), an appellate court “should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).
Decision Date: April 16, 2009