July 18, 2006

Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U))

Headnote

The case involved a dispute between Delta Diagnostic Radiology, P.C. and American Manufacturers Mutual Insurance Co. regarding the payment of first-party no-fault benefits for medical services rendered to an assignor. Delta Diagnostic Radiology, P.C. moved for summary judgment, which was granted in March 2005, but American Manufacturers Mutual Insurance Co. moved for reargument and, in July 2005, the court granted reargument and denied Delta Diagnostic Radiology, P.C.'s motion for summary judgment. The main issue decided by the court was whether or not Delta Diagnostic Radiology, P.C. had provided sufficient proof of its submission of the claims to American Manufacturers Mutual Insurance Co., and whether or not American Manufacturers Mutual Insurance Co. had timely requested verification and made the requisite follow-up requests as well as timely denied the claims based on lack of medical necessity. The court determined that the affidavit submitted by Delta Diagnostic Radiology, P.C. was sufficient to allow the annexed claim forms to be considered, but that American Manufacturers Mutual Insurance Co. had raised a triable issue of fact by showing that it timely requested verification and made follow-up requests, and timely denied the claims based on lack of medical necessity. Therefore, the court held that Delta Diagnostic Radiology, P.C.'s motion for summary judgment was properly denied.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U))

Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U)) [*1]

Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co.

2006 NY Slip Op 51439(U) [12 Misc 3d 145(A)]

Decided on July 18, 2006

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1394 K C. NO. 2005-1394 K C

DELTA DIAGNOSTIC RADIOLOGY, P.C. a/a/o JOSE GONZALES, Appellant,
against
AMERICAN MANUFACTURERS MUTUAL INSURANCE CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered July 15, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, upon granting defendant’s motion for reargument of plaintiff’s summary judgment motion, which was granted in a prior order dated March 2, 2005, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover $1,791.73 in first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In March 2005, the court below granted plaintiff’s motion and denied defendant’s cross motion as moot. In July 2005, defendant moved by order to show cause for reargument of the court’s March order, which motion plaintiff opposed. By order entered July 15, 2005, the court granted reargument and, insofar as is relevant hereto, denied plaintiff’s motion for summary judgment.

Contrary to the determination of the court below, the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms to be considered by the court. The deficiency in plaintiff’s moving papers concerning proof of its submission of the claims to defendant was cured by the acknowledgment of receipt of the claims in the denial of claim forms annexed to plaintiff’s moving papers (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]). The burden then shifted to defendant to demonstrate a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Upon a review of the record, we find that defendant raised a triable issue of fact by showing that it timely requested verification and made the requisite follow-up requests (see 11 NYCRR 65-3.5 [b]), and, upon receiving the requested verification, timely denied the claims based on lack of medical necessity as set forth in detailed peer review reports (see A.B. Med Servs. PLLC v Travelers Prop Cas. Corp., 8 Misc 3d 139[A], 2005 NY Slip Op 51330[U] [App Term, 2d & 11th Jud Dists]; Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687 [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic and Acupuncture v Electric Ins. Co., 2 Misc 3d 135[A], 2004 NY Slip Op 50215[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*3]

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 18, 2006