Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50454(U))

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 (Lisa S. Ottley, J.), entered April 30, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered to assignor Jeannette Lugaro is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In its respondent’s brief, defendant concedes that it was not entitled to summary judgment [*2]dismissing so much of the complaint as sought to recover upon a claim for services rendered to Jeannette Lugaro because defendant failed to annex a copy of the peer review report pertaining to such services. However, plaintiff is not entitled to summary judgment upon this claim because plaintiff failed to demonstrate that defendant’s denial of this claim was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

With respect to the remaining claims, for services rendered to assignors Boris Gurevich, Isabel Guaraca and Lydia Best, the affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]) these claims. Defendant annexed to its cross motion papers sworn peer review reports, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services rendered to these three assignors. As defendant’s prima facie showing was unrebutted by plaintiff, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims of these three assignors were properly 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 is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered to assignor Jeannette Lugaro is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 20, 2013