Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co. (2010 NY Slip Op 50070(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 8, 2008, deemed in part from a judgment of said court entered November 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the August 8, 2008 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action and denied so much of defendant’s cross motion as sought summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,113.03. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s first, second and third causes of action.

ORDERED that the judgment is affirmed without costs; and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s second and third causes of action is granted; as so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action, and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered awarding plaintiff the principal sum of $1,113.03 on its fourth through tenth causes of action.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]the mailing of the claims in question since he stated that he had personally mailed the claims (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, insofar as is relevant to this appeal by defendant, plaintiff made out its prima facie entitlement to summary judgment.

While defendant argues that plaintiff was not entitled to summary judgment upon its fourth through tenth causes of action and that defendant was entitled to summary judgment dismissing said causes of action because defendant had timely denied the underlying claims based on the assignor’s failure to appear for independent medical examinations, defendant’s motion papers failed to establish that the assignor failed to appear for such examinations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to demonstrate its entitlement to judgment upon said causes of action or even to raise a triable issue of fact with respect thereto. Accordingly, plaintiff was entitled to summary judgment upon these causes of action (id.).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action, defendant established that the claims at issue in said causes of action were timely denied on the ground of lack of medical necessity based upon an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for such medical services (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing said causes of action, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since plaintiff failed to do so, defendant was entitled to summary judgment dismissing plaintiff’s second and third causes of action (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Defendant also contends that the Civil Court should have granted it summary judgment dismissing plaintiff’s first cause of action because defendant established that it had timely denied the claim on the ground that the fees charged were excessive and not in accordance with the workers’ compensation fee schedule. While defendant is not precluded from asserting said defense (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]), defendant failed to establish that the fees charged were in fact excessive. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action.

Accordingly, the judgment in favor of plaintiff is affirmed and the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary
judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s second and third causes of action.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 12, 2010