Delta Diagnostic Radiology, P.C. v Farmers New Century Ins. Co. (2007 NY Slip Op 52284(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, Richmond County (Peter Paul Sweeney, J.), entered April 20, 2006, deemed an appeal from a judgment entered May 5, 2006 (CPLR 5520 [c]). The judgment, entered pursuant to the April 20, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,600.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment on the ground that prior to the commencement of the subject action, a related no-fault
matter arising out of the same accident was submitted to arbitration. Defendant contended that the election to arbitrate precluded this action (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]). The court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. A judgment was subsequently entered.

Upon a review of the record, we find that defendant failed to establish that the instant action was barred. Defendant did not offer evidence to support its contention that there was a prior election by plaintiff to arbitrate a claim for no-fault benefits pertaining to plaintiff’s assignor for injuries allegedly sustained in the accident which gave rise to the claims at issue herein. [*2]

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s
establishment of its prima facie case, this court need not pass on the propriety of the implicit determination of the court below with respect thereto. The burden, therefore,
shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment, defendant asserted that the amount sought by plaintiff exceeded the amount set forth in the applicable fee schedule and that it timely denied plaintiff’s claims on the ground of lack of medical necessity (11 NYCRR 65-3.8 [c]). However, defendant failed to establish that the denials were timely mailed since the affidavit of defendant’s representative did not state that he personally mailed the denials or set forth defendant’s standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Moreover, contrary to the dissent, we find no concession by plaintiff in its submissions as to the timeliness of the denials.

Since defendant failed to establish that the claims were denied within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) including its proffered defenses of lack of medical necessity and that the
fees charged were excessive (see Benson Med., P.C. v Progressive Northeastern Ins.
Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51427[U] [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to reverse the judgment, vacate so much of the order as granted plaintiff’s motion for summary judgment and deny plaintiff’s motion for summary judgment.

I disagree with the majority opinion and vote to reverse the judgment and vacate the part of the order which grants plaintiff’s motion for summary judgment on the ground that defendant has rebutted the prima facie showing of plaintiff. Lack of medical necessity is a defense to an action for recovery of no-fault benefits, and may be asserted by the insurer provided that there has been a timely denial of the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). It is undisputed that defendant issued timely denials as evidenced by the denial of claim forms which were submitted as part of plaintiff’s moving papers (see generally [*3]A.B. Med. Servs. PLLC v. Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]). Indeed, plaintiff concedes timeliness by its submissions and does not raise the issue either below or on appeal. Thus, the question presented here is not the sufficiency of the affidavit of mailing.

Rather, plaintiff moves for summary judgment solely on the grounds that defendant unreasonably denied the claims. Inasmuch as it is undisputed that defendant’s denials of benefits were timely made within the prescribed statutory period, and the defense of lack of medical necessity having been sufficiently asserted through submissions in admissible form to rebut the prima facie showing (see Liberty Queens Med., P.C. v Liberty Mutual Insurance Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists]), plaintiff’s motion for summary judgment should not have been granted.

However, I am in agreement with the majority’s opinion that defendant’s cross motion for summary judgment was properly denied. Defendant failed to submit any admissible proof to establish that this action was barred.
Decision Date: November 21, 2007