Boris Kleyman, P.C. v Kemper Ins. Co. (2008 NY Slip Op 50877(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 (Diane A. Lebedeff, J.), entered October 27, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment 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. Insofar as is relevant, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity. This appeal by plaintiff ensued.

Contrary to defendant’s contention, plaintiff established 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The peer review reports submitted by defendant in support of its defense that the services rendered were not medically necessary are illegible. Thus, defendant failed to demonstrate the existence of a triable issue of fact as to medical necessity (see generally West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 24, 2008