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Viviane Etienne Medical Care, P.C. As Assignee of Silviano Lopez v. Geico General Ins. Co

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


February 11, 2013

VIVIANE ETIENNE MEDICAL CARE, P.C. AS ASSIGNEE OF SILVIANO LOPEZ,
APPELLANT,
v.
GEICO GENERAL INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010.

Viviane Etienne Med. Care, P.C. v GEICO Gen. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered March 10, 2010 as granted the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated, and those branches of defendant's cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's appeal from so much of an order of the Civil Court entered March 10, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

In support of its cross motion, defendant submitted affirmed independent medical examination reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided on May 2, 2005 through May 31, 2005, June 2, 2005 through June 30, 2005, June 14, 2005, July 5, 2005 through July 19, 2005, August 1, 2005 through August 15, 2005, and September 20, 2005. Consequently, defendant established its prima facie entitlement to summary judgment on those claims (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]). Since plaintiff failed to rebut this showing (see 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]), the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims were properly granted.

However, the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005 should have been denied. In support of its cross motion, defendant failed to proffer sufficient evidence to establish as a matter of law that these claims had been improperly billed or were in excess of the amount permitted by the fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Additionally, a portion of the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for date of service April 28, 2005 should have been denied. Although defendant submitted 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 six of the services provided on this date, which conclusion plaintiff failed to rebut, one of the services, which had been was billed at a rate of $182.18, and had been partially paid by defendant in the amount of $154.30, had been partially denied since it had allegedly exceeded the maximum allowance under a fee schedule. However, defendant failed to proffer sufficient evidence to establish as a matter of law that the remaining balance of this claim, in the amount of $27.88, was, in fact, in excess of the amount permitted by the applicable fee schedule (see Rogy Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U]).

Accordingly, the judgment is reversed, so much of the order entered March 10, 2010 as granted the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated and those branches of defendant's cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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