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Bath Medical Supply, Inc. As Assignee of Dyan L. Berger, Respondent v. Geico Insurance Co.

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


December 23, 2010

BATH MEDICAL SUPPLY, INC. AS ASSIGNEE OF DYAN L. BERGER, RESPONDENT,
v.
GEICO INSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 16, 2009. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

Bath Med. Supply, Inc. v. GEICO Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2010

PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that defendant had issued timely and valid claim denials. The Civil Court found that defendant's claim denial forms "were timely and properly mailed," and held that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. This appeal by defendant ensued.

The papers submitted in support of defendant's motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the opinions of the peer reviewers that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's motion, plaintiff stated that it was not in possession of all the information and documentation relied upon by the peer reviewers and that these documents were "essential to justify opposition" to defendant's motion (CPLR 3212 [f]). Plaintiff, however, failed to demonstrate that it needed these documents in order to raise a triable issue of fact as to whether the supplies at issue were medically necessary (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to seek discovery of such documentation before the summary judgment motion was made (see Mega Supply & Billing, Inc. v Clarendon [reported as Larendon] Natl. Ins. Co., 28 Misc 3d 137[A], 2010 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

In light of the foregoing, as well as the Civil Court's CPLR 3212 (g) finding that defendant's claim denial forms were timely and properly mailed, a finding which plaintiff does not dispute on appeal, and since plaintiff failed to rebut defendant's prima facie showing that there was a lack medical necessity for the supplies at issue (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]), the branch of defendant's motion seeking summary judgment dismissing the complaint should have been granted.

Golia, J.P., Pesce and Steinhardt, JJ., concur. Decision Date: December 23, 2010

20101223

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