Be Well Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50346(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, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 2006, deemed from a judgment entered on September 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 16, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,253.50.

Judgment reversed without costs, so much of the order entered June 16, 2006 as granted plaintiff’s motion for summary judgment upon its second cause of action
vacated, defendant’s cross motion for summary judgment granted to the extent of dismissing the second cause of action, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees upon the remaining sum of $590 awarded plaintiff.

Defendant’s argument that plaintiff did not prove a prima facie case in this action to recover assigned first-party no-fault benefits because plaintiff did not prove that the supplies furnished to plaintiff’s assignor were provided pursuant to a prescription from a health care provider lacks merit. A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto. [*2]

The affidavit submitted by defendant’s litigation examiner was sufficient to give rise to a presumption that the verification requests and denial of claim forms at issue were mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the litigation examiner conceded that the verification requested concerning plaintiff’s claim for $590 was received on March 19, 2001 and that the denial of claim form was not mailed until April 19, 2001, thereby rendering the denial of claim form untimely as a matter of law and precluding defendant from interposing a defense of lack of medical necessity as to this claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g], now [11 NYCRR] § 65-3.8). In light of the foregoing, plaintiff was entitled to summary judgment upon its first cause of action.

Defendant’s timely denial of claim form as to the claim for $1,663.50 stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary. Such a denial of claim form is sufficient to avoid preclusion of the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant annexed an affirmed peer review report which found that the supplies at issue were not medically necessary, thereby establishing defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s second cause of action. Inasmuch as plaintiff offered no medical evidence to rebut defendant’s prima facie case, plaintiff’s motion for summary judgment on its second cause of action should have been denied and defendant should have been granted summary judgment dismissing said cause of action (see A Khodadadi Radiology, P.C. v New York 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 matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $590 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008