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New York Diagnostic Medical Care, P.C. As Assignee of Judith Saint-Leger, Appellant v. Geico General Insurance Company

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


March 15, 2013

NEW YORK DIAGNOSTIC MEDICAL CARE, P.C. AS ASSIGNEE OF JUDITH SAINT-LEGER, APPELLANT, --
v.
GEICO GENERAL INSURANCE COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 10, 2011.

New York Diagnostic 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013

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

The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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.

Although plaintiff established that defendant had not paid the claim, plaintiff failed to show that the basis for the denial of the claim was conclusory, vague or lacked merit as a matter of law (see 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]). Thus, the Civil Court properly determined that plaintiff had failed to establish its prima facie case.

In opposition to defendant's cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, plaintiff submitted an affidavit by its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Neomy Med., P.C. v GEICO Ins. Co., 34 Misc 3d 144[A], 2012 NY Slip Op 50145[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 15, 2013

20130315

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