| Sunshine Imaging Assn./WNY MRI v Government Empls. Ins.Co. |
| 2009 NY Slip Op 06984 [66 AD3d 1419] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Sunshine Imaging Association/WNY MRI, as Assignee of CarolL. Vancheri and Others, Appellant, v Government Employees Insurance Company, Also Knownas "GEICO," Respondent. |
—[*1] Law Office of Daniel R. Archilla, Buffalo (David H. Frech of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredJuly 25, 2008. The order denied plaintiff's motion for summary judgment and granted defendant'smotion to sever the causes of action.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, as assignee of 14 patients to whom it provided radiological services,commenced this action seeking to recover no-fault benefits pursuant to the contract betweeneach patient and defendant insurer. We conclude that Supreme Court properly denied plaintiff'smotion for summary judgment on the amended complaint. Although plaintiff made a prima facieshowing of entitlement to judgment as a matter of law by submitting evidence that the prescribedstatutory billing forms were received by defendant and that defendant's payment of no-faultbenefits to plaintiff was overdue (seeA.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; LMK Psychological Servs., P.C. v LibertyMut. Ins. Co., 30 AD3d 727, 728 [2006]), defendant raised a triable issue of fact bysubmitting its denial of claim forms setting forth that the services for which plaintiff sought torecover no-fault benefits were not medically necessary (see Countrywide Ins. Co. v 563Grand Med., P.C., 50 AD3d 313, 314 [2008]; A.B. Med. Servs., PLLC, 39AD3d at 780-781). Contrary to plaintiff's contention, defendant is not precluded from denyingthe claims after the services were rendered on the ground of lack of medical necessity. Plaintiff'sassignors were entitled only to reimbursement for medically "necessary" expenses (InsuranceLaw § 5102 [a] [1]; see 11 NYCRR 65-1.1 [d]), and plaintiff assignee is subject tothat lack of medical necessity defense (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765[2007]).
Contrary to plaintiff's further contention, the court did not abuse its discretion in grantingdefendant's motion to sever the 14 causes of action. "The decision whether to grant severance'rests soundly in the discretion of the trial court and, on appeal, will be affirmed absent ademonstration of abuse of discretion or prejudice to a substantial right' " (Rapini v New Plan Excel Realty Trust,Inc., 8 AD3d 1013, 1014 [2004]; see Soule v Norton, 299 AD2d 827, 828[2002]). [*2]Although this action was commenced "by a singleassignee against a single insurer and all [causes of action] allege the erroneous nonpayment ofno-fault benefits . . . , they arise from [14] different automobile accidents onvarious dates in which the [14] unrelated assignors suffered diverse injuries and requireddifferent medical treatment" (Poole vAllstate Ins. Co., 20 AD3d 518, 519 [2005]). Present—Scudder, P.J., Hurlbutt,Martoche, Smith and Centra, JJ.