Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51655(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s claims division employee established, with respect to plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80, that defendant’s denial of claim forms had been timely [*2]mailed (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]). It is undisputed that defendant had made timely partial payments on the latter two claims. Moreover, defendant annexed to its cross motion papers an affirmed peer review report and an affirmed independent medical examination report which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the services at issue in the above four claims. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. In view of the foregoing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the above four claims were properly granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [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]).

However, defendant failed to establish that it had timely denied two claims, each seeking to recover the sum of $838.95 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover upon these claims.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012