SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
January 24, 2012
NEOMY MEDICAL, P.C. AS ASSIGNEE OF ALBERT BOOKAL,
GEICO INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 2, 2009.
Neomy Med., P.C. v Geico Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012
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 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
; 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 NY 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 NY 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 NY Slip
Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park
& Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A],
2009 NY 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 NY2d 557 ).
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012
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