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Hollis Medical Services, P.C. As Assignee of Johnny Daceus v. Geico Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


September 5, 2012

HOLLIS MEDICAL SERVICES, P.C. AS ASSIGNEE OF JOHNNY DACEUS,
RESPONDENT,
v.
GEICO INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 4, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]).

Hollis Med. Servs., 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2012

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

The judgment, entered pursuant to the January 4, 2011 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,598.39.

ORDERED that the judgment is reversed, without costs, the order entered January 4, 2011 is vacated, plaintiff's motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court entered January 4, 2011 which granted plaintiff's motion for summary judgment and denied 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 the determination of the Civil Court, the affidavit by defendant's employee was sufficient to establish that defendant had timely mailed the denial of claim forms. The affidavit established that the denials had been mailed from defendant's Woodbury office and described defendant's standard mailing practice and procedure for that office (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and a medical rationale for each doctor's determination that there was a lack of medical necessity for the services rendered. 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]).

Accordingly, the judgment is reversed, the order entered January 4, 2011 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: September 05, 2012

20120905

© 1992-2012 VersusLaw Inc.



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