New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
August 31, 2012
FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF VICTOR MORALES,
GEICO GENERAL INS. CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 26, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]).
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co.
Decided on August 31, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ
The judgment, entered pursuant to the April 26, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Contrary to plaintiff's argument on appeal, the affidavit submitted by
defendant established the timely mailing of the denial of claim form
(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]), which denied plaintiff's claim
on the ground of lack of medical necessity. In addition, defendant submitted a sworn peer review
report which set forth a factual basis and a medical rationale for the psychologist's determination
that there was a lack of medical necessity for the services at issue. Since defendant's prima facie
showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the
complaint (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]). Plaintiff's remaining contentions on appeal lack merit (see e.g. 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]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012
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