Opinion
No. 2010–1914 K C.
2011-12-23
HIGH QUALITY MEDICAL, P.C. as Assignee of Johnie Daniels, Respondent, v. GEICO INS. CO., Appellant.
Present: PESCE, P.J., GOLIA and STEINHARDT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 3, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, 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. The Civil Court implicitly denied the motion and cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff's claim, and that the sole issue for trial was defendant's defense of lack of medical necessity of the services provided to plaintiff's assignor. Defendant appeals, as limited by its brief, from so much of the order as implicitly denied its cross motion for summary judgment dismissing the complaint.
In support of its cross motion, defendant submitted, among other things, an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report or the IME report ( 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] ). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, 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] ).
Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.