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Avicenna Med. Arts v. Geico Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.
May 22, 2014
43 Misc. 3d 143 (N.Y. App. Term 2014)

Opinion

No. 2011–3284KC.

2014-05-22

AVICENNA MEDICAL ARTS, P.L.L.C. as Assignee of Valeria Segura, Respondent, v. GEICO INS. CO., Appellant.


Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212(g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212(g) findings in favor of plaintiff are vacated, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made, in effect, CPLR 3212(g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted two sworn reports of independent medical examinations (IMEs), each of which set forth a factual basis and medical rationale for the examiner's determination that there was a lack of medical necessity for the services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME reports ( see Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, the CPLR 3212(g) findings in favor of plaintiff are vacated as academic, and defendant's cross motion for summary judgment dismissing the complaint is granted ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. 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 N.Y. 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 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ).

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.


Summaries of

Avicenna Med. Arts v. Geico Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.
May 22, 2014
43 Misc. 3d 143 (N.Y. App. Term 2014)
Case details for

Avicenna Med. Arts v. Geico Ins. Co.

Case Details

Full title:AVICENNA MEDICAL ARTS, P.L.L.C. as Assignee of Valeria Segura, Respondent…

Court:Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.

Date published: May 22, 2014

Citations

43 Misc. 3d 143 (N.Y. App. Term 2014)
2014 N.Y. Slip Op. 50871
993 N.Y.S.2d 643