SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 16, 2009. The order, insofar as appealed from, 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 and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, holding that the sole issue to be determined at trial was medical necessity for the supplies at issue. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (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]) the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant submitted, among other things, two sworn peer review reports, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue (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 [*2]Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.

Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered November 18, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground of lack of medical necessity. As limited by the brief, defendant appeals from so much of the order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

The affidavit and peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the services rendered (Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). However, the affidavit of plaintiff’s treating chiropractor, submitted in opposition to defendant’s motion for summary judgment, was sufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered (cf. 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]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U], *2 [App Term, 2d, 11th & [*2]13th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 18, 2008. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed without costs and defendant’s motion to vacate the default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to vacate a default judgment.

In order to vacate a default judgment pursuant to CPLR 5015 (a) (1), a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Putney v Pearlman, 203 AD2d 333 [1994]). A motion to vacate a default judgment is addressed to the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]), and its determination will generally not be disturbed unless it can be shown that the court improvidently exercised its discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]).

Plaintiff’s affidavit of service established that plaintiff had effectuated service upon defendant through the delivery of the summons and complaint to the Superintendent of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). In support of defendant’s motion to vacate the default judgment, there was more than a “mere denial” of [*2]receipt of the summons and complaint (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). Defendant submitted an affidavit from one of its no-fault litigation examiners, who had personal knowledge regarding defendant’s practices and procedures in retrieving, opening and filing its mail and in maintaining its files on existing claims. In said affidavit, the no-fault litigation examiner stated that defendant had never received the summons, the complaint or the motion for a default judgment (cf. Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 [2010]). Accordingly, pursuant to CPLR 317, defendant met its burden of showing that it did not receive actual notice of the summons in time to defend the action.
Furthermore, defendant established the existence of a meritorious defense to the action. Defendant submitted an affidavit from its litigation examiner in which he stated that the assignor had cancelled her insurance policy with defendant prior to the date of the accident and had not subsequently taken out another insurance policy with defendant.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in denying defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is granted.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered January 3, 2008. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 claim on the ground that plaintiff had failed to submit the claim within 45 days after the date the supplies at issue had been provided to its assignor. Insofar as is relevant to this appeal, plaintiff opposed defendant’s motion for summary judgment on the ground that defendant had waived reliance on the 45-day rule because it had failed to advise plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that the untimely submission of a claim would be excused where the applicant provided reasonable justification for its failure to give timely notice of the claim. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

The affidavit of defendant’s claims adjuster sufficiently established the timely mailing of the denial of claim form, since the affidavit described in detail defendant’s standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see 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]). Defendant denied the claim on the ground that plaintiff’s submission of the claim was untimely. The denial of claim form adequately advised plaintiff, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.3 (e), that late submission of the claim would be excused if plaintiff provided a reasonable justification for the failure to timely submit the claim. Although the record reveals that plaintiff promptly submitted its claim to defendant after its initial claim [*2]was denied by another insurance carrier, plaintiff failed to proffer any explanation as to why it first submitted the claim to the other insurance carrier. As a result, plaintiff failed to provide defendant with a reasonable justification for plaintiff’s untimely submission of the claim to defendant (see St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748 [2005]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]). Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 19, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment on its second cause of action, and defendant cross-moved for summary judgment dismissing said cause of action on the ground of lack of medical necessity. The Civil Court denied plaintiff’s motion and defendant’s cross motion, finding that the sole issue to be determined at trial was medical necessity.

Defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity (see 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]). In support for its cross motion for summary judgment, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue (Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]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]). Accordingly, the branch of defendant’s cross motion which sought summary judgment dismissing the second cause of action should have been granted (id.; see also 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 Steinhardt, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 20, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment on its first cause of action and denied defendant’s cross motion seeking summary judgment dismissing the first cause of action.

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

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 dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court granted plaintiff summary judgment on its first cause of action, finding that defendant had failed to properly toll its time to pay or deny the subject bills. On appeal, defendant argues that its cross motion for summary judgment should have been granted to the extent that it sought dismissal of plaintiff’s first cause of action, because defendant had timely and properly denied the subject bills on the ground that plaintiff had failed to appear for an examination under oath (EUO).

While defendant properly argues that an EUO need not be scheduled to be held within 30 days of the receipt of the claim form (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [App Term, 2d & 11th Jud Dists 2008]), defendant nevertheless failed to demonstrate that the EUO scheduling letters were timely mailed. Defendant admits that it received the three subject bills on October 27, 2006. As the EUO scheduling letters were mailed on December 18, 2006, 52 days after receipt of the bills, they were untimely and did not toll defendant’s time to pay or deny those bills (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; § 65-3.8 [j]; see also Eagle Surgical Supply, Inc., 21 Misc 3d at 51).

Accordingly, the Civil Court properly found that defendant had failed to demonstrate that it had properly tolled its time to pay or deny the subject bills and that,therefore, defendant had failed to raise a triable issue of fact. As a result, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.71.

ORDERED that the judgment is reversed without costs, the order entered October 3, 2008 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied. In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to plaintiff’s motion for summary judgment, that plaintiff had failed to establish a prima facie case, and that, in any event, defendant paid the claim seeking the sum of $879.72 and that there was a lack of medical necessity for the MRI which was the subject of plaintiff’s $911.99 claim. By order entered October 3, 2008, the Civil Court granted plaintiff’s motion, and defendant appeals therefrom. A judgment was subsequently entered from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Since the affidavit of defendant’s claims representative conceded receipt of the claim in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s prima facie entitlement to summary judgment was established.

In opposition to the motion, defendant established that it had timely mailed its denial of [*2]claim form, which denied plaintiff’s $911.99 claim on the ground of lack of medical necessity, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that items are properly addressed and mailed (see e.g. 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]). Defendant also annexed a copy of the affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the MRI was not medically necessary (see e.g. 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]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant presented sufficient evidence to raise a question of fact as to whether defendant had already paid plaintiff’s claim seeking the sum of $879.72. As a result, defendant raised triable issues of fact so as to warrant the denial of plaintiff’s motion for summary judgment.

Accordingly, the judgment is reversed, the order entered October 3, 2008 granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered August 15, 2008. The judgment, entered pursuant to an order of the same court entered June 20, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,012.91.

ORDERED that the judgment is reversed without costs, the portions of the order entered June 20, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third, fifth, sixth, eighth and ninth causes of action are vacated, plaintiff’s motion for summary judgment is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third, fifth, sixth, eighth and ninth causes of action are granted, and the matter is remitted to the Civil Court for all further proceedings on the fourth and seventh causes of action.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, and this appeal by defendant ensued.

Since the affidavit of defendant’s claims representative conceded receipt of the claims in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App [*2]Term, 2d & 11th Jud Dists 2006]), plaintiff’s prima facie entitlement to summary judgment was established.

The affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the NF-10 denial of claim forms and verification requests since it described, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices or procedures used to ensure that said documents were properly mailed (see 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]).

In regard to plaintiff’s first, second, third, fifth, sixth, eighth and ninth causes of action, defendant established that it had timely mailed its initial requests for verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), and plaintiff had failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was required to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]), “the 30-day period within which the defendant was required to pay or deny the claim[s] did not commence to run [and] plaintiff’s action is premature” (id. at 865 [citations omitted]). As a result, defendant was entitled to summary judgment dismissing these causes of action.

Defendant also established that it had timely denied the two $365.68 claims (plaintiff’s fourth and seventh causes of action) on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Consequently, defendant raised a triable issue of fact with respect to the fourth and seventh causes of action (see St. Vincent’s Med. Care, P.C. v Country-Wide Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op 29508 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, the portions of the order entered June 20, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third, fifth, sixth, eighth and ninth causes of action are vacated, plaintiff’s motion for summary judgment is denied, the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third, fifth, sixth, eighth and ninth causes of action are granted, and the matter is remitted to the Civil Court for all further proceedings on the fourth and seventh causes of action.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 10, 2010

[*1]

Supreme Court, Appellate Term, Second Department, March 10, 2010

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**27 Misc 3d at 53} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed without costs, and defendant GEICO Casualty Insurance Co.’s cross motion for summary judgment dismissing the complaint as against it is denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant GEICO Casualty Insurance Co. opposed the motion and cross-moved for summary judgment dismissing the complaint as against it on the ground that the matter raised a dispute of priority of payment as between insurers, which was subject to mandatory arbitration pursuant to Insurance Law § 5105, and that plaintiffs had failed [*2]to state a cause of action. The District Court granted defendant GEICO’s cross motion for summary judgment dismissing the complaint as against it and denied plaintiffs’ motion for summary judgment as academic. As limited by their brief, plaintiffs appeal from so much of the order as granted GEICO’s cross motion.

On July 23, 2005, Leon Regis, plaintiffs’ assignor, was injured in an accident in New York while driving a vehicle registered to Sandra Dixon, a New Jersey resident. The record is unclear as to whether the vehicle was insured by defendant Mercury Indemnity Insurance Company of America or by Mercury Insurance Group. After Mercury Insurance Group received an NF-2 form on Mr. Regis’s behalf, it notified plaintiffs that although Mr. Regis was driving Ms. Dixon’s vehicle at the time of the accident, he was not entitled to no-fault benefits under her Mercury Insurance Group policy since he was neither listed on her insurance policy nor a resident relative of the insured. However, plaintiffs were advised to contact Mr. Regis’s counsel since it appeared that Mr. Regis may have been entitled to coverage “as a named insured or member of the named insured’s family residing in his household under the terms of another policy” (NJ Stat Ann § 39:6A-7 [b] [3]). Shortly thereafter, plaintiffs determined that there was another policy under which Mr. Regis might be entitled to no-fault benefits, and thereafter{**27 Misc 3d at 54} notified GEICO of the claims. By letter of November 11, 2005, GEICO acknowledged receipt of a “Notification of Commencement of Treatment” for Mr. Regis, but stated that Mr. Regis had “undetermined eligibility” (see NJ Admin Code § 11:3-25.3 [f]) for no-fault benefits afforded under GEICO’s policy with the insured, Larry Goodwin, a New Jersey resident (who is apparently Mr. Regis’s father). That policy was also issued in New Jersey. In an accompanying letter of the same date, GEICO described the no-fault claims procedure used for those seeking benefits under New Jersey policies. Ultimately, GEICO, in a letter dated March 17, 2006, denied no-fault benefits under its policy issued to Mr. Goodwin. Thereafter, plaintiffs brought the instant action, claiming that payment of no-fault benefits was overdue. Plaintiffs, alleging that Mercury Indemnity Insurance Company of America was not subject to jurisdiction in New York, since it did not appear in the “Insurance Company Search” section of the Web site maintained by the New York State Department of Insurance, only served process on GEICO. Plaintiffs ultimately sought summary judgment against GEICO, claiming that the vehicle which Mr. Regis drove should be treated as an uninsured vehicle, and that GEICO was therefore responsible for payment of no-fault benefits.

In the instant case, there is a conflict between New Jersey law and New York law with respect to the procedure involving the submission of claims. In Careplus Med. Supply, Inc. v Selective Ins. Co. of Am. (25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]), this court, faced with a similar conflict in an action by a provider to recover assigned first-party no-fault benefits, followed the “center of gravity” or “grouping of contacts” approach adopted by the Court of Appeals in Auten v Auten (308 NY 155 [1954]), which gives controlling effect to the law of the state that has “the most significant relationship to the transaction and the parties” (Restatement [Second] of Conflict of Laws § 188 [1]). In addition to the traditional determinative factor of the place of contracting, which should be given “heavy weight” in a grouping of contacts analysis (see Haag v Barnes, 9 NY2d 554, 560 [1961]), the places of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties are also to be considered (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317 [1994]; Restatement [Second] of Conflict of Laws § 188 [2]).

We find, upon the application of a “center of gravity” or “grouping of contacts” analysis, that the dispositive factors{**27 Misc 3d at 55} weigh in favor of New Jersey, and that its law should control (see Careplus Med. Supply, Inc., 25 Misc 3d 48 [2009]). Although the accident occurred in New York, the vehicle involved in the accident was registered in New Jersey to an insured who lived in New Jersey. The relevant insurance policies were apparently entered into in New Jersey either by Sandra Dixon, who resided in New Jersey, or by GEICO’s insured, who also resided in New Jersey. There is a question of fact as to which insurer is responsible for payment since the record does not establish as a matter of law that plaintiffs’ assignor was a resident relative of a New Jersey insured. Indeed, there are numerous issues of fact which must be resolved at trial under New Jersey law. Consequently, GEICO is not entitled to summary judgment dismissing the complaint as against it.

Accordingly, the order, insofar as appealed from, is reversed, and GEICO’s cross motion for summary judgment dismissing the complaint as against it is denied.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 7, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

The affidavit of defendant’s claims representative sufficiently established the timely mailing of the claim denial form (see 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]). In support of its cross motion, defendant also submitted the affidavit and peer review report of its chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the medical equipment for which plaintiff sought payment in its second cause of action. As a result, defendant made a prima facie showing of its entitlement to summary judgment dismissing plaintiff’s second cause of action (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]), and the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.

As the doctor’s affirmation submitted by plaintiff in opposition to the cross motion was [*2]sufficient to raise a triable issue of fact as to medical necessity, the Civil Court properly denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action. Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010