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Jamaica Medical Supply, Inc. As Assignee of David W. Monk and Dyshaun Reid v. Geico General Ins. Co

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


February 19, 2013

JAMAICA MEDICAL SUPPLY, INC. AS ASSIGNEE OF DAVID W. MONK AND DYSHAUN REID,
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 28, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]).

Jamaica Med. Supply, Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2013

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

The judgment, entered pursuant to the April 28, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court 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 forms (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 claims on the ground of lack of medical necessity. In addition, defendant submitted peer review reports, as well as affirmations executed by the physicians who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. Defendant's prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the affirmations executed by the peer review physicians contained electronic stamped facsimiles of the peer reviewers' signatures and, as a result, defendant failed to provide proof in admissible form to establish its defense of lack of medical necessity. However, the record indicates that the signatures were placed on the affirmations by the doctors who had performed the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Plaintiff's remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 19, 2013

20130219

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