Opinion
No. 2011–1577 K C.
2013-05-6
JAMAICA MEDICAL SUPPLY, INC. as Assignee of Clayton Williams, Respondent, v. GEICO GENERAL INS. CO., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
Present PESCE, P.J., RIOS and SOLOMON, JJ.
ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely mailed ( 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] ) the denial of the claim form at issue, which denied the claim on the ground of lack of medical necessity. Moreover, defendant submitted a properly affirmed peer review report which set forth a factual basis and medical rationale for the reviewer's determination that there was no medical necessity for the medical equipment at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone 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 N.Y. Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). Therefore, defendant's cross motion should have been granted ( see 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 is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.