Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50739(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered June 8, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, affirmed without costs.

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, asserting that, based on a peer review report, it timely denied plaintiff’s claim on the ground that the supplies provided were not medically necessary. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, holding, inter alia, that defendant established its defense of lack of medical necessity based on a peer review report and plaintiff proffered no evidence in opposition thereto showing that the supplies provided were in fact medically necessary. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

Contrary to plaintiff’s contention, the denial of claim form submitted by defendant, which included a defense of lack of medical necessity as per a peer review report, was not fatally defective. Although defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006] [internal quotations and citation omitted]), and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.; see also All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 130[A], 2008 NY Slip Op [*2]51417[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s defense of lack of medical necessity was not precluded.

Defendant’s cross motion papers, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, the Civil Court properly granted defendant’s cross motion for summary judgment (see 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 N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contentions were improperly raised for the first time on appeal and, in any event, lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 16, 2009