Allstate Ins. Co. v Belt Parkway Imaging, P.C.

2010 NY Slip Op 08783 [78 AD3d 592]

November 30, 2010

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 19, 2011

Allstate Insurance Company et al., Respondents, v Belt Parkway Imaging, P.C., et al., Appellants, et al., Defendants.

—[*1] Hession Bekoff Cooper & LoPiccolo, LLP, Garden City (Jonathan M. Cader of counsel), and Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Todd Fass of counsel), for appellants. Cadwalader, Wickersham & Taft LLP, New York (William J. Natbony of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 26, 2009, which denied the motion by defendants Belt Parkway Imaging, P.C., Diagnostic Imaging, P.C., Metroscan Imaging, P.C., Parkway MRI, P.C. (the PC defendants) and Herbert Rabiner, M.D., for partial summary judgment, unanimously affirmed, without costs.

“A provider of health care services is not eligible for reimbursement under section 5102(a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). Pursuant to this regulation, the Court of Appeals held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319, 321 [2005]). Mallela was decided on March 29, 2005. The Legislature subsequently enacted Insurance Law § 5109, which became effective on August 2, 2005.

There is no indication in section 5109 that the statute overrules Mallela. Nor is there any such indication in its legislative history, which “must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with” (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]).

Section 5109 (a) states, “The superintendent, in consultation with the commissioner of health and the commissioner of education, shall by regulation, promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services as specified in” Insurance Law § 5102 (a) (1). However, the Superintendent of Insurance has issued no regulations pursuant to section 5109 (a). Thus, if—as defendants contend—only the Superintendent can take action against fraudulently incorporated health care providers, then no one can take such action. In light of the [*2]fact that “[t]he purpose of the regulations of which [11 NYCRR] 65-3.16 (a) (12) is a part was to combat fraud” (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, 409 [2006]), this would be an absurd result, and we reject it (McKinneys Cons Laws of NY, Book 1, Statutes § 145).

Defendants’ contention that plaintiffs fail to state a cause of action for unjust enrichment because they have not alleged that the services rendered by the PC defendants were medically unnecessary is without merit. Paragraph 1 of the second amended complaint alleges that “numerous unnecessary referrals were made subjecting many patients to unnecessary testing and/or radiation.” Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-2147 N C.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated July 9, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of a motion by plaintiff St. Vincent’s Hospital & Medical Center seeking summary judgment upon the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff St. Vincent’s Hospital & Medical Center (SVHMC) moved for summary judgment upon the first and second causes of action, and defendant cross-moved for summary judgment dismissing those causes of action on the ground that they were premature since SVHMC had failed to fully comply with defendant’s verification requests. The District Court granted SVHMC’s motion for summary judgment upon the first and second causes of action, and denied defendant’s cross motion, finding that defendant had failed to establish the mailing of its initial and follow-up verification requests. This appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant’s claims examiner was sufficient to establish that the initial and follow-up verification requests were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). However, defendant’s contention that SVHMC failed to provide requested verification lacks merit. Defendant’s verification requests sought copies of NF-5 forms signed by SVHMC’s assignors. However, the only [*2]portions of an NF-5 form which may bear the signature of an eligible injured person are the portions which authorize the release of health service or treatment information in accordance with the No-Fault Law and which either assign no-fault benefits to a provider or authorize the provider to receive payments directly from the insurer. As defendant was already in possession, prior to its verification requests, of the subject NF-5 forms, which each bore notations that the assignor’s signature was “on file,” defendant’s verification requests, in effect, sought a copy of the document(s) “on file” which had been signed by the assignors. Since SVHMC established that it had, in response to the verification requests, provided defendant with copies of the authorizations to release information and the assignments executed by the assignors, SVHMC established that it had complied with those requests. While defendant’s attorney asserted that defendant had never received the signed assignment of benefits forms, defendant’s attorney’s affirmation was without probative value as defendant’s attorney lacked personal knowledge of same (see Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001 [2009]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-1836 N C.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. The District Court denied defendant’s motion, finding that defendant’s peer reviewer failed to set forth a sufficient medical rationale and factual basis for his conclusion that the services performed were not medically necessary, and, upon a search of the record, granted summary judgment to plaintiff. The instant appeal by defendant ensued.

In support of its motion, defendant submitted an affidavit of its no-fault litigation examiner, which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affidavit of defendant’s chiropractor and his peer review report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

In opposition to defendant’s motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Speciality Surgical Servs. v [*2]Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-1819 N C.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 12, 2009. The order denied defendant’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The District Court denied the motion, stating that although defendant had timely denied plaintiff’s claims, the peer review report upon which the denials were based was insufficient. The instant appeal by defendant ensued.

In support of its motion, defendant submitted affidavits of an employee of its claims division which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]).

Since defendant made a prima facie showing that the services at issue lacked medical necessity, the burden shifted to plaintiff to rebut defendant’s showing. As plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Speciality Surgical [*2]Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1782 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that defendant’s denial of claim form was “timely and proper,” and that the sole issue to be determined at trial was the medical necessity of the medical equipment at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical equipment at issue. Defendant’s showing that the equipment was not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial was “timely and proper,” a finding which plaintiff has not disputed on appeal, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY 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 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1781 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 24, 2009. The order, insofar as appealed from, in effect denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered. Plaintiff did not oppose defendant’s cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it mailed timely and valid denials,” and that the sole issue to be determined at trial was the medical necessity of the medical services at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, the affirmed peer review reports of a neurologist and a doctor of internal medicine, both of which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that such services were not medically necessary was unrebutted by plaintiff. While plaintiff asserts on appeal that a letter of medical necessity by Dr. Ronald DiScenza was submitted by plaintiff in rebuttal to one of the peer review reports and was sufficient to raise a triable issue of fact, the order appealed from indicates that the Civil Court did not consider any opposition to the cross motion and there is no such letter in the record.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it mailed timely and valid denials,” a finding which plaintiff does not dispute on appeal, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic [*2]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]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570600/10.

Shulman, J.P., McKeon, Schoenfeld, JJ.

NY County Clerk’s No. 570600/10 Calendar No. 10-358 Triangle R Inc. a/a/o Danilo Cabarcas, Plaintiff-Respondent, -against- Praetorian Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue. As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*2]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur Decision Date: November 26, 2010

NOVEMBER 26, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								Nove mber 2010 Term

Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue.

As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).
Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*3]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570501/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which denied its motions for summary judgment dismissing the complaints.

Per Curiam.

Order (Fernando Tapia, J.), entered April 15, 2010, reversed, with $10 costs, defendant’s motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgement accordingly.

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff’s assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant’s motion for summary judgment dismissing the underlying actions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 26, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-2023 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 11, 2009, deemed from a judgment of the same court entered June 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 11, 2009, which, inter alia, granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,790.67.

ORDERED that the judgment is reversed, without costs, so much of the order entered May 11, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action are 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. Defendant appeals from an order entered May 11, 2009 insofar as it granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding whether plaintiff established its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavit of defendant’s claims representative established that defendant timely requested additional verification of the claim at issue in the third cause of action and that plaintiff failed to respond to defendant’s initial and follow-up requests (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the third cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, the branch of defendant’s cross motion seeking to dismiss the third cause of action should have been granted.

Defendant timely denied the claim at issue in the first cause of action on the ground of lack of medical necessity (St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In support of its cross motion, defendant also submitted an affirmed peer review report from defendant’s chiropractor, which set forth a factual basis and medical rationale for the conclusion that the services rendered were not medically necessary. The chiropractor’s peer review report was affirmed (cf. CPLR 2106) instead of being sworn to before a notary public. However, inasmuch as plaintiff did not submit papers in opposition to defendant’s cross motion for summary judgment, plaintiff waived such defect by failing to object to it in the Civil Court (see Akamnonu v Rodriguez, 12 AD3d 187 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut the conclusion set forth in the peer review report, the branch of defendant’s cross motion seeking to dismiss the first cause of action should have been granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1933 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 28, 2009. The order granted the branch of plaintiff’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint, and, upon reargument, vacated the prior order and denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services provided were not medically necessary. Plaintiff submitted an affirmation in opposition to defendant’s motion for summary judgment. By order entered December 5, 2008, the Civil Court granted defendant’s motion. By order entered May 28, 2009, the Civil Court granted the branch of a motion by plaintiff seeking leave to reargue, and, upon reargument, vacated the December 5, 2008 order and denied defendant’s motion for summary judgment. The instant appeal by defendant ensued.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied plaintiff’s bills on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue lacked medical necessity. Therefore, defendant established its prima facie entitlement to summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY 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 NY Slip Op [*2]52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the doctor’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

On reargument, plaintiff contended that the Civil Court had overlooked the affirmation of Dr. Shapiro, which plaintiff had submitted in opposition to defendant’s original motion for summary judgment. However, this affirmation was insufficient to raise a triable issue of fact. Accordingly, the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010