April 25, 2008

A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50910(U))

Headnote

The court considered the fact that the plaintiff, a provider, had filed a motion for summary judgment to recover first-party no-fault benefits, but the defendant had timely denied the claim based on a peer review report stating that the services provided were not medically necessary. The main issue decided was whether the denial of the claim form was timely mailed according to the defendant's standard office practice and procedure, and whether the peer review report submitted by the defendant was sufficient to demonstrate an issue of fact with respect to the defense of lack of medical necessity. The holding of the case was that the denial of claim form was found to have been timely mailed, and the peer review report submitted by the defendant was deemed to be enough to show the existence of an issue of fact, so the order denying the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50910(U))

A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50910(U)) [*1]

A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co.

2008 NY Slip Op 50910(U) [19 Misc 3d 140(A)]

Decided on April 25, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1974 K C.

A Khodadadi Radiology, P.C. a/a/o Peter Borneo, Appellant,
against
Travelers Property Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered September 8, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff’s claim on the ground that the services provided were not medically necessary based on a peer review report. The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to defendant’s standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; 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]; see also New York & Presbyterian Hospital v AIU Ins. Co., 20 AD3d 515 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Defendant’s papers submitted in opposition to plaintiff’s motion for summary judgment, which included a peer review report, were sufficient to demonstrate the existence of an issue of fact with respect to the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, [*2]albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 2008