Amol, Inc. v Travelers Ins. Co. (2006 NY Slip Op 51271(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 (Eileen Nadelson, J.), entered April 1, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for plaintiff’s failure to prosecute the action and plaintiff cross-moved for summary judgment. By order entered April 1, 2005, the court denied both motions. On appeal, plaintiff contends that it is entitled to summary judgment since defendant’s denial of plaintiff’s claim was untimely and, thus, defendant is precluded from raising its defense of lack of medical necessity.

Contrary to plaintiff’s argument, defendant’s denial of plaintiff’s claim was not untimely. Plaintiff asserted that it first submitted its claim to defendant on May 15, 2002 and, after receiving no response from defendant regarding same, it re-submitted its claim on August 3, 2002. However, the affidavit of plaintiff’s owner failed to establish that plaintiff mailed its claim to defendant on May 15, 2002 by either proof of actual mailing or proof of plaintiff’s standard office practice or procedure which was designed to ensure that items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558 [2d Dept, May 2, 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d [*2]679 [2001]). On its denial of claim form, defendant acknowledged receipt of plaintiff’s claim form on August 7, 2002 (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]) and the affidavit of defendant’s claims representative proved that defendant denied plaintiff’s claim on September 3, 2002 on the ground of lack of medical necessity, based on a peer review report annexed to its denial of claim form. Since plaintiff failed to establish that the denial of claim form was untimely, defendant is not precluded from raising its defense
of lack of medical necessity. Said defense raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and, thus, the lower court properly denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 28, 2006