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Neomy Medical, P.C. As Assignee of Olga Draganchyuk v. Geico Insurance Company

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


August 4, 2011

NEOMY MEDICAL, P.C. AS ASSIGNEE OF OLGA DRAGANCHYUK,
RESPONDENT,
v.
GEICO INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 30, 2009.

Neomy Med., P.C. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

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 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, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court held that there is an issue of fact with respect to the medical necessity of the services rendered to plaintiff's assignor because defendant had not annexed the medical records upon which the peer review relied and defendant had failed to establish a foundation for the admission of the records. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed the denial of claim form (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]), which denied the claim at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, a 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. Contrary to the determination of the Civil Court, there was no need for defendant to annex the medical records examined by the peer review doctor (cf. Matter of State of New York v Wilkes, 77 AD3d 1451 [2010]). Furthermore, since the purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff's assignor was injured as documented in his medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (see id.; 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]). Consequently, defendant established its prima facie entitlement to summary judgment (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]). Defendant's showing that the services rendered to plaintiff's assignor were not medically necessary was unrebutted by plaintiff. Accordingly, defendant's cross motion for summary judgment dismissing the complaint should have been granted.

Weston, J.P., and Pesce, J., concur.

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

Contrary to the finding of the majority, in my opinion, the affidavit of defendant's representative failed to describe on personal knowledge the mailing procedure employed at GEICO by the mailroom employees.

The affidavit alleges in conclusory terms that the envelopes containing the denials are placed in a mail bin for collection by mailroom employees and that they are: "routinely collected by GEICO's mail department personnel at least twice daily and delivered to the GEICO mailroom, located within the building at the Woodbury location. These envelopes are postmarked with that day's date by a GEICO mailroom employee. Proper postage due is also affixed by GEICO's mail personnel through a United States Post Office authorized postage machine. On that same day, a GEICO mailroom employee brings these postmarked, postage paid envelopes to the United States Post Office, Woodbury location, at 217 Woodbury Road, Woodbury, New York, 11797. This GEICO employee then personally relinquishes these envelopes to a United States Postal Service employee."

In my view, the affidavit fails to establish a procedure sufficient to demonstrate that the mailing is forwarded to the claimant, especially where no certificate of bulk mailing from the postal service is offered (see Residential Holding Corp. v Scottsdale Ins. Co.,286 AD2d 679 [2001]; Hospital For Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]).

Notwithstanding the apparent flaw in defendant's proof, the majority points to the holding in St. Vincent's Hosp. of Richmond v Government Employees Ins. Co. (50 AD3d 1123 [2008]), which held that a similar affidavit established a general office procedure sufficient to ensure that documents were properly addressed and mailed. In St. Vincent's, the appellate court credited a statement by the insurer's representative that "the contents of this mail pick-up bin are collected by GEICO's mail department personnel . . . Within 48 hours of its arrival in the GEICO mail room, the mail is delivered to the local United States Postal Service location and mailed."

Accordingly, I am constrained to concur with my colleagues in their determination.

Decision Date: August 04, 2011

20110804

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