Opinion
No. 2011–2315 K C.
2013-03-18
NEW YORK DIAGNOSTIC MEDICAL CARE, P.C. as Assignee of Judith Saint–Leger, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Respondent.
Present: RIOS, J.P., PESCE and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 10, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Although plaintiff established that defendant had not paid the claim, plaintiff failed to show that the basis for the denial of the claim was conclusory, vague or lacked merit as a matter of law ( see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 A.D.3d 1168 [2010];Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128[A], 2011 N.Y. Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Thus, the Civil Court properly determined that plaintiff had failed to establish its prima facie case.
In opposition to defendant's cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, plaintiff submitted an affidavit by its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity ( see Neomy Med., P.C. v. GEICO Ins. Co., 34 Misc.3d 144[A], 2012 N.Y. Slip Op 50145[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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] ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.