March 29, 2017

Tyorkin v GEICO Gen. Ins. Co. (2017 NY Slip Op 50364(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Queens County, which denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant had made a prima facie showing of its entitlement to summary judgment dismissing the complaint, and whether the plaintiff's submissions were sufficient to rebut the conclusions set forth in the peer review report submitted by the defendant. The holding of the court was that the defendant had timely mailed its denial of claim form, and the peer review report submitted by the defendant demonstrated that the injury treated by the plaintiff was not causally related to the accident in question. As a result, the court affirmed the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Tyorkin v GEICO Gen. Ins. Co. (2017 NY Slip Op 50364(U))

Tyorkin v GEICO Gen. Ins. Co. (2017 NY Slip Op 50364(U)) [*1]

Tyorkin v GEICO Gen. Ins. Co.

2017 NY Slip Op 50364(U) [55 Misc 3d 128(A)]

Decided on March 29, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2nd, 11th & 13th JUDICIAL DISTRICTS

PRESENT: MICHAEL L. PESCE, P.J. MICHELLE WESTON THOMAS P. ALIOTTA, JJ.
2015-01203 Q C

Maxim Tyorkin, M.D., as Assignee of Autar Mainwatty, Appellant,
against
GEICO General Insurance Company, Respondent.

Law Offices of Emilia I. Rutigliano, P.C., Marina Josovich, Esq., for appellant.

Law Office of Printz & Goldstein, Lawrence J. Chanice, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. 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 affirmed, with $25 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 plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that its denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, contrary to plaintiff’s argument, the affirmed peer review report submitted by defendant demonstrated, prima facie, that the injury treated by plaintiff was not causally related to the accident in question. Thus, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint. In opposition to the 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 report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In light of the foregoing, we need not consider the parties’ remaining contentions.

Accordingly, the order is affirmed.

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

Paul Kenny
Chief Clerk

Decision Date: March 29, 2017