Opinion
No. 2012–1225 Q C.
2014-08-12
GLENN SEGAL PT, P.C. as Assignee of Stanley Mercier, Respondent, v. GEICO, Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered April 9, 2012. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212(g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212(g) findings in plaintiff's favor are vacated, and defendant's cross motion for summary judgment dismissing the complaint is granted.
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 claim at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made, in effect, CPLR 3212(g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issues for trial were “those that form the basis of the defendant's denials, including but not limited to the medical necessity of the services at issue.”
In support of its cross motion, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME) of plaintiff's assignor, as well as an affirmed report by the doctor who had performed a second IME. Both of the IMEs were performed before the services at issue were rendered. Each IME report set forth a factual basis and medical rationale for the examiner's conclusion that there was a lack of medical necessity for further treatment. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the chiropractor's report, and further failed to sufficiently rebut the conclusions set forth in the doctor's report ( see Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136 [A], 2009 N.Y. 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 N.Y. Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131 [A], 2007 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ).