We Care Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50831(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 February 10, 2009, deemed, in part, from a judgment of the same court entered April 22, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the February 10, 2009 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first cause of action, awarded plaintiff the principal sum of $85. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s third cause of action.

ORDERED that the judgment is affirmed without costs; and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs and so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s third cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for an order, pursuant to CPLR 3212 (g), finding that defendant had established the timely mailing of its denial of claim forms. Insofar as is relevant to this appeal, the Civil Court granted plaintiff’s motion for summary judgment to the extent of [*2]awarding plaintiff summary judgment on its first
cause of action and denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s third cause of action. Defendant’s appeal ensued. A judgment subsequently was entered upon the first cause of action. The appeal from the order is deemed, in part, to be taken from the judgment (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit of defendant’s claims division employee, submitted in opposition to plaintiff’s motion for summary judgment, failed to address plaintiff’s first cause of action. Accordingly, defendant failed to raise a triable issue of fact with regard to said cause of action, and the judgment is affirmed.

With respect to plaintiff’s third cause of action, defendant established that it had timely denied the claim at issue on the ground that the services provided were not medically necessary (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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 support of its cross motion for summary judgment, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for the services for which payment was sought in the third 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]; 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]). Plaintiff failed to rebut defendant’s evidence of the lack of medical necessity for these services. Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff’s third cause of action, and plaintiff failed to raise a triable issue of fact with respect to this cause of action. Accordingly, so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s third cause of action is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: May 10, 2010