Elmont Open MRI & Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51185(U))

Elmont Open MRI & Diagnostic Radiology, P.C. v GEICO Ins. Co.

2006 NY Slip Op 51185(U) [12 Misc 3d 133(A)]

Decided on June 8, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.

Elmont Open MRI and Diagnostic Radiology, P.C., d/b/a All County Open MRI and Diagnostic Radiology, as Assignee of Tao Sau Yeung, Appellant,

against

GEICO Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated September 30, 2004. The order denied plaintiff's motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, defendant timely denied the claims on the ground of lack of medical necessity. A timely denial alone, however, does not avoid preclusion where said denial is factually insufficient, conclusory or vague, and an insurer seeking to deny benefits based on lack of medical necessity must set forth with sufficient particularity the factual basis and medical rationale underlying that determination (see A. B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, the conclusions of the peer review upon which the denial was based were not supported by a sufficient factual foundation and medical rationale to warrant rejection of the claims and, accordingly, were insufficient to support a defense of lack of medical necessity (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]; see also A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v [*2]Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]). Under the circumstances, defendant has failed to raise a triable issue of fact.

Accordingly, summary judgment is granted in favor of plaintiff and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.