March 16, 2015

Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2015 NY Slip Op 50391(U))

Headnote

The court considered the motion for summary judgment by the plaintiff, Rainbow Supply of NY, Inc., as assignee of Georgia Brown and Vanessa Thompson, and the cross motion for summary judgment by the defendant, Geico General Ins. Co., in a case involving the recovery of assigned first-party no-fault benefits. The main issue decided was whether the defendant had timely and properly denied the claims based on a lack of medical necessity for the supplies at issue. The court held that the defendant's cross motion for summary judgment dismissing the complaint was granted, as the plaintiff's affidavit failed to rebut the conclusions set forth in the peer review reports submitted by the defendant. The court found that defendant was otherwise entitled to judgment and reversed the decision of the Civil Court, vacating the findings in plaintiff's favor and granting defendant's cross motion for summary judgment.

Reported in New York Official Reports at Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2015 NY Slip Op 50391(U))

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

Rainbow Supply of NY, Inc. as Assignee of GEORGIA BROWN and VANESSA THOMPSON, Respondent,
against
Geico General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted two peer review reports, along with affidavits executed by the chiropractors who had performed the peer reviews, which set forth a factual basis and medical rationale for each reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is 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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: March 16, 2015