New Way Med. Supply Corp. v GEICO Ins. Co. (2014 NY Slip Op 50880(U))

Decided on May 22, 2014

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 (Carolyn E. Wade, J.), entered March 16, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made 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 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 for summary judgment dismissing the complaint, defendant submitted three affirmed peer review reports, each of which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Although the parties’ appellate briefs indicate that, in opposition to defendant’s cross motion, plaintiff may have served papers which included an affidavit purportedly rebutting the peer review reports, the order appealed from recites that the sole papers considered by the court were plaintiff’s motion and defendant’s cross motion. This court’s review is limited to the papers considered by the Civil Court (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50115[U] [App Term, 2d & 11th Jud Dists 2005]), and plaintiff did not submit any medical evidence in support of its motion for summary judgment which might have raised a triable issue of fact as to medical necessity.

Thus, as plaintiff did not rebut defendant’s prima facie showing of a lack of medical necessity 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, the CPLR 3212 (g) findings in plaintiff’s favor are vacated as academic, and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v [*2]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.