September 24, 2008

Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co. (2008 NY Slip Op 51928(U))

Headnote

The insurer's unsigned peer-review report was inadmissible and failed to raise a triable issue on medical necessity. The Appellate Term, First Department, reversed the denial of the provider's summary judgment motion, granted the motion and directed entry of judgment. The provider proved mailing and receipt of the prescribed billing forms and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The peer-review report did not comply with CPLR 2106. The insurer also supplied no competent evidentiary proof for its fraudulent-incorporation defense under Mallela or its defense that the charges did not conform to the workers' compensation fee schedule.

Reported in New York Official Reports at Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co. (2008 NY Slip Op 51928(U))

[*1]
Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co.
2008 NY Slip Op 51928(U) [21 Misc 3d 127(A)]
Decided on September 24, 2008
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


PRESENT: McKEON, P.J. , SCHOENFELD, HEITLER JJ
570232/08.
Bronx Multi Medical Care, P.C. a/a/o Percio Guerrero, Plaintiff-Appellant, – –

against

Kemper Casualty Insurance Company, Defendant-Respondent.

Plaintiff appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), dated August 16, 2007, as denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), dated August 16, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $8,054.90 granted. The Clerk is directed to enter judgment accordingly.

In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742[2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant failed to raise triable issues of fact. The unsigned report of defendant’s peer review doctor submitted in support of the defense of lack of medical necessity failed to comply with CPLR 2106, and thus did not constitute admissible evidence (see Vista Surgical Supplies, Inc. v Travelers Ins. Co. 50 AD3d 778 [2008]). Nor did defendant submit competent evidentiary proof in support of its defenses of fraudulent incorporation (see 11 NYCRR 3.16[a][12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 131 [2005]) and nonconformity with the worker’s compensation schedule.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 24, 2008

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