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Five Boro Psychological Services, P.C. As Assignee of Alexander Mayer v. Geico General Ins. Co

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 ALEXANDER MAYER,
APPELLANT,
v.
GEICO GENERAL INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 30, 2010, deemed from a judgment of the same court entered August 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 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 reversed, without costs, so much of the order entered April 30, 2010 as granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant's cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered April 30, 2010 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 [2008]; 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.

As to the $194.58 billed for a diagnostic interview (procedure code 90801), we find that there is an issue of fact and that, therefore, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $194.58 for procedure code 90801 should have been denied.

As to the remaining three services at issue, 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 these services. Since defendant's prima facie showing as to these three services was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover for these services (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 as to these services 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]). Consequently, we leave undisturbed so much of the order as granted the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Accordingly, the judgment is reversed, so much of the order entered April 30, 2010 as granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon plaintiff's claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant's cross motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 31, 2012

20120831

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