February 2, 2006

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U))

Headnote

The relevant facts that the court considered were that plaintiff health care provider submitted a claim for first-party no-fault benefits for medical services rendered to its assignor, and that payment of the benefits was overdue. The main issue decided was whether the defendant could establish that the denial was timely mailed within the 30-day prescribed claim determination period. The holding of the case was that the defendant failed to provide proof or an affidavit establishing that the denial was sent to the plaintiff, and therefore the court affirmed the order granting the plaintiff's motion for summary judgment. The defendant was precluded from raising the defense that the procedure was not medically necessary because it neither denied the claim within 30 days of receipt nor effectively extended the 30-day period.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U))

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U)) [*1]

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co.

2006 NY Slip Op 50137(U) [10 Misc 3d 145(A)]

Decided on February 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-765 N C.

Delta Diagnostic Radiology, P.C., a/a/o Bien-Aime Clement, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), entered February 28, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see
Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The burden therefore shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the denial was timely mailed within the 30-day prescribed claim determination period. Defendant failed to submit any documentary proof or an affidavit from one with personal knowledge establishing that the denial was sent to plaintiff (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Nor did defendant create a presumption of mailing by submission of an affidavit describing the standard operating procedures it uses to ensure that its denial was mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic [*2]Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Defendant is therefore precluded from raising the defense that the procedure was not medically necessary because defendant neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day period (see
[*3]Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Consequently, the motion court properly granted plaintiff’s motion for summary
judgment.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 02, 2006