May 22, 2014

Diagnostic Radiographic Imaging v GEICO Gen. Ins. Co. (2014 NY Slip Op 50869(U))

Headnote

The court considered the fact that the provider was seeking to recover assigned first-party no-fault benefits from the insurance company. The insurance company had denied the claims based on a lack of medical necessity and submitted affirmed peer review reports to support their determination. The main issue decided was whether the denial of the claims by the insurance company was justified based on the lack of medical necessity. The court held that the insurance company's showing that the services were not medically necessary was not rebutted by the plaintiff, and therefore, the insurance company's cross motion for summary judgment dismissing the complaint should have been granted. The court reversed the lower court's order and granted the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Diagnostic Radiographic Imaging v GEICO Gen. Ins. Co. (2014 NY Slip Op 50869(U))

Diagnostic Radiographic Imaging v GEICO Gen. Ins. Co. (2014 NY Slip Op 50869(U)) [*1]

Diagnostic Radiographic Imaging v GEICO Gen. Ins. Co.

2014 NY Slip Op 50869(U) [43 Misc 3d 143 (A)(A)]

Decided on May 22, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2011-3164 K C

Diagnostic Radiographic Imaging as Assignee of HAI-YAN LU and LIU YOU YU, Respondent,
against
GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings

County (Patricia Anne Williams, J.), entered July 5, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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 so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s moving papers established that defendant had timely denied the claims at issue (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]) based on a lack of medical necessity. In addition, defendant submitted two affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the determinations that there was no medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been 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]). Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted

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

Decision Date: May 22, 2014