A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 1, 2005. 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. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment, which motion defendant opposed. The court below denied said motion by order entered June 1, 2005 and this appeal ensued.

At the outset we find that the letters defendant asserts are verification requests for plaintiff’s $494.37, $359.35 and $815.36 claims are insufficient to act as such and, therefore, did not toll the statutory time period in which defendant had to pay or deny these claims (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Consequently, defendant’s denials as to these claims were untimely and it is precluded from raising the defenses proffered herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It is noted that defendant paid $565.70 on plaintiff’s $815.36 claim.

There is no merit to plaintiff’s contention that the defense of lack of medical necessity is precluded as to its $1,972.08 and $1,573.24 claims because defendant failed to provide it with a copy of the peer review report. We note that defendant failed to establish that it sent a copy of the peer review report within the 30-day claim denial period. Although the regulations set forth that plaintiff may request a copy of the peer review report (see 11 NYCRR 65-3.8 [b] [4], formerly 11 NYCRR 65.15 [g] [2] [iv]), they provide no sanctions for an insurer’s failure to do so. Nevertheless, the lack of medical necessity defense is precluded on another ground. To preserve the defense of lack of medical necessity, defendant’s denial of claim forms must assert, with the requisite specificity, the necessary facts and medical rationale to establish such defense (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]), thereby satisfying the NF-10 form’s requirement that the basis of any denial be “fully and explicitly” set forth (see A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]; Park Neurological Servs. P.C. v Geico Ins., 4 Misc 3d 95, 96 [App Term, 9th and 10th Jud Dists 2004]). Herein, the denials were factually insufficient and thus, while timely, did not avoid preclusion (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 53 [App Term, 2d & 11th Jud Dists 2005]). Moreover, the affirmed peer review report defendant submitted in opposition to plaintiff’s motion for summary judgment (the contents of which, contrary to plaintiff’s contention, established a triable issue as to the medical necessity of the services rendered) does not remedy the factual insufficiencies of the denials (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]).

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an [*3]
assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states: [*4]

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 12, 2006