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Favorite Health Products, Inc. As Assignee of Yiudelky Y. Burdier v. Geico Ins. Co

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


February 11, 2013

FAVORITE HEALTH PRODUCTS, INC. AS ASSIGNEE OF YIUDELKY Y. BURDIER, 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 6, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]).

Favorite Health Prods., Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

The judgment, entered pursuant to the January 6, 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 $2,782.80.

ORDERED that the judgment is reversed, with $30 costs, so much of the January 6, 2011 order as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

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 6, 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]).

The affidavit by defendant's claims examiner submitted in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the medical equipment provided was not medically necessary, had been timely mailed (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]). In addition, the affirmed peer review reports by defendant's doctors that were submitted, were sufficient to establish a lack of medical necessity for the medical equipment in question, as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the equipment (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]). In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor which was sufficient to raise a triable issue of fact as to the equipment's medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. 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, so much of the order entered January 6, 2011 as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

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

20130211

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