May 6, 2013

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50760(U))

Headnote

The court considered the case of Jamaica Medical Supply, Inc. as Assignee of Clayton Williams v GEICO General Insurance Co. The main issue decided was whether the provider was entitled to recover assigned first-party no-fault benefits. The court held that the provider was not entitled to recover the benefits, reversing the order of the Civil Court and granting the defendant's cross motion for summary judgment dismissing the complaint. This decision was based on the fact that the defendant had timely mailed the denial of the claim form, citing lack of medical necessity, and had submitted a properly affirmed peer review report. The court found that the plaintiff's submission of an affirmation by a doctor failed to rebut the conclusions set forth in the peer review report. Therefore, the defendant's cross motion should have been granted, and the plaintiff's motion for summary judgment was denied.

Reported in New York Official Reports at Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50760(U))

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50760(U)) [*1]

Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50760(U) [39 Misc 3d 141(A)]

Decided on May 6, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1577 K C.

Jamaica Medical Supply, Inc. as Assignee of CLAYTON WILLIAMS, 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 May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely 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]) the denial of the claim form at issue, [*2]which denied the claim on the ground of lack of medical necessity. Moreover, defendant submitted a properly affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical equipment at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (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]). Therefore, defendant’s cross motion should have been granted (see 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]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013