February 8, 2008

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50293(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-progressive-cas-ins-co-2008-ny-slip-op50293u/

Court
Appellate Term, Second Department
Decided
February 8, 2008
Citation
2008 NY Slip Op 50293(U) · 18 Misc 3d 137(A)
Posture
Summary judgment
Outcome
Split result
Issues
Timeliness and preclusion Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 18 Misc 3d 137(A), 2008 NY Slip Op 50293(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish timely denials because it mailed them more than 30 days after receiving the claims without proving tolling. Under 11 NYCRR 65-3.8 (a) (1), it therefore failed to show that its medical-necessity defense was not precluded, despite submitting affirmed peer review reports. The court rejected the provider's contention that the NF-10 forms were fatally defective. The provider's own motion failed because its corporate officer did not establish personal knowledge sufficient to authenticate the supporting documents as business records. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's motion, denied that motion, and remanded for further proceedings. The denial of the insurer's cross motion remained undisturbed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50293(U))

[*1]
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.
2008 NY Slip Op 50293(U) [18 Misc 3d 137(A)]
Decided on February 8, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., and RIOS, J.
2006-1971 Q C
Delta Diagnostic Radiology, P.C. a/a/o ELLA FELDMAN, Respondent,

against

Progressive Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered June 7, 2006, deemed from a judgment entered July 31, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 7, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

Judgment reversed without costs, so much of the order entered June 7, 2006 as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant contends, inter alia, that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s [*2]practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Defendant cross-moved for summary judgment dismissing the complaint on the ground that it timely denied plaintiff’s claims based on a lack of medical necessity as set
forth in affirmed peer review reports. Plaintiff’s contention that defendant was not entitled to summary judgment because its NF-10 denial forms are fatally defective lacks merit (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). However, defendant failed to establish that its denial of claim forms were timely since defendant admittedly mailed its NF-10 denial forms more than 30 days following its receipt of the claim forms (Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]) without also demonstrating that its time to pay or deny same was tolled pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (a) (1). Accordingly, defendant’s cross motion for summary judgment was properly denied since defendant failed to demonstrate that its defense of lack of medical necessity was not precluded.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008

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