February 11, 2013

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50197(U))

Headnote

The main issue in this case was whether the defendant, GEICO General Insurance Company, was entitled to summary judgment dismissing the complaint by the plaintiff, Viviane Etienne Medical Care, P.C., seeking to recover claims for no-fault benefits on various dates. The court considered the defendant's timely mailing of denial of claim forms, peer review reports, and independent medical examination reports which provided evidence that the medical services at issue were not medically necessary. The court found that the defendant had established its prima facie entitlement to summary judgment, and that the plaintiff had not rebutted this showing. As a result, the court affirmed the order in favor of the defendant, dismissing the complaint seeking to recover benefits on the specified dates.

Reported in New York Official Reports at Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50197(U))

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50197(U)) [*1]

Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50197(U) [38 Misc 3d 139(A)]

Decided on February 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-3153 K C.

Viviane Etienne Medical Care, P.C. as Assignee of KUMAR SATISH, Appellant, —
against
Geico General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), dated June 22, 2010. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January 11, 2007 through January 16, 2007.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court dated June 22, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January [*2]11, 2007 through January 16, 2007.

Insofar as is relevant to this appeal, the affidavit submitted by defendant was sufficient to establish the timely mailing of the denial of claim forms (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]), which denied plaintiff’s claims on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, defendant established its prima facie entitlement to summary judgment (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]). Defendant’s showing that the services rendered to plaintiff’s assignor were not medically necessary was unrebutted by plaintiff (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]).

Plaintiff’s remaining contentions lack merit (see Quality Health Prods. v Geico Gen. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50415[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 2013