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Pomona Medical Diagnostics, P.C. as Assignee of PEDRO M. VARGAS, Respondent v. GEICO Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 26, 2010

POMONA MEDICAL DIAGNOSTICS, P.C. AS ASSIGNEE OF PEDRO M. VARGAS, RESPONDENT,
v.
GEICO INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 24, 2009.

The opinion of the court was delivered by: Present: Rios, J.P.,

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co.

Decided on November 26, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2010

PESCE and GOLIA, JJ

The order, insofar as appealed from, in effect 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered. Plaintiff did not oppose defendant's cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it mailed timely and valid denials," and that the sole issue to be determined at trial was the medical necessity of the medical services at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, the affirmed peer review reports of a neurologist and a doctor of internal medicine, both of which set forth a factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the medical services at issue. Defendant's showing that such services were not medically necessary was unrebutted by plaintiff. While plaintiff asserts on appeal that a letter of medical necessity by Dr. Ronald DiScenza was submitted by plaintiff in rebuttal to one of the peer review reports and was sufficient to raise a triable issue of fact, the order appealed from indicates that the Civil Court did not consider any opposition to the cross motion and there is no such letter in the record.

In light of the foregoing, and the Civil Court's CPLR 3212 (g) finding that defendant "established that it mailed timely and valid denials," a finding which plaintiff does not dispute on appeal, defendant's cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY 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 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Rios, J.P., Pesce and Golia, JJ., concur. Decision

20101126

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