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Complete Radiology, P.C. As Assignee of Trudi Heatherly v. Geico Insurance Company

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


February 8, 2013

COMPLETE RADIOLOGY, P.C. AS ASSIGNEE OF TRUDI HEATHERLY, APPELLANT, --
v.
GEICO INSURANCE COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 23, 2010.

Complete Radiology, P.C. v GEICO Ins. Co.

Decided on February 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 SOLOMON, JJ

The order, insofar as appealed from, denied the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff's claim for $879.73 and found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff's claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees as to that claim.

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 on the ground that it had timely and properly denied the claims in question based on a lack of medical necessity. The Civil Court denied both motions, and held that plaintiff had "established its prima facie entitlement to summary judgment, pursuant to CPLR 3212 (g)" and that defendant had "timely and properly denied said bills." The court further stated that the sole issue to be determined at trial was the medical necessity of the services that had been rendered to plaintiff's assignor. Plaintiff appeals from so much of the order as denied the branch of plaintiff's motion seeking summary judgment on the complaint insofar as it sought to recover upon plaintiff's claim for $879.73, and so much of the order as found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

To make a prima facie showing of entitlement to summary judgment, a no-fault provider must submit proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant had either failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]).

By invoking CPLR 3212 (g) and by limiting the trial in this case to the issue of medical necessity, the court implicitly found that (1) the fact and the amount of the loss sustained, and (2) the submission of the claim form to defendant, were "established for all purposes in the action" because they were "not in dispute" or were "incontrovertible" (CPLR 3212 [g]).

While the Civil Court also found, as incontrovertible, that defendant had timely denied plaintiff's claim for $879.73, plaintiff correctly notes on appeal that, in defendant's papers, defendant failed to even allege that it had mailed the denial of that claim. Plaintiff argues that, given the Civil Court's CPLR 3212 (g) finding that, with respect to the claim for $879.73, plaintiff had established its prima facie entitlement to judgment as a matter of law, coupled with defendant's failure to establish in its motion papers a timely denial of the claim, the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff's claim for $879.73 should have been granted.

In opposition, defendant argues, among other things, that the Civil Court's finding that plaintiff had established its prima facie case was incorrect because plaintiff had not proven the fact and the amount of the loss sustained. Plaintiff responds by arguing that this finding is not reviewable because defendant did not cross-appeal.

Under the circumstances presented, we need not reach the question of whether defendant was required to cross-appeal in order to obtain review of the CPLR 3212 (g) finding which established, for all purposes in the action, the fact and the amount of the loss sustained since, contrary to defendant's argument on appeal, plaintiff did establish the fact and the amount of the loss sustained by demonstrating that its claim form is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein, and defendant did not rebut that showing. Thus, whether or not the CPLR 3212 (g) finding in question can be reviewed on this appeal, plaintiff is entitled to summary judgment on so much of the complaint as sought to recover upon its claim for $879.73.

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff's claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees as to that claim.

Pesce, P.J., Rios and Solomon, JJ., concur.

Decision Date: February 08, 2013

20130208

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