Opinion
No. 2010–1482KC.
2012-01-24
NEOMY MEDICAL, P.C. as Assignee of Albert Bookal, Respondent, v. GEICO INSURANCE COMPANY, Appellant.
Present: WESTON, J.P., PESCE and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 2, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs,
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.
Defendant established that it had timely denied the claim ( 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] ) on the ground of lack of medical necessity. The papers submitted in support of defendant's cross motion for summary judgment included an affirmed peer review report, 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, the burden shifted to plaintiff to rebut defendant's prima facie showing ( see Alur Med. Supply, Inc. v. Clarendon Natl. Ins. Co., 27 Misc.3d 132[A], 2010 N.Y. Slip Op 50700 [U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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 opposition to defendant's cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity ( see Quality Psychological Servs., P.C. v. Mercury Ins. Group, 27 Misc.3d 129 [A], 2010 N.Y. Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 22 Misc.3d 141[A], 2009 N.Y. Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ).
In view of the foregoing, defendant's cross motion for summary judgment was properly denied ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).