Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51557(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Sandra K. Pardes, J.), entered March 22, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment,
which motion defendant opposed. By order entered April 4, 2005, the court below denied plaintiff’s motion on the ground that it failed to establish its prima facie entitlement to judgment, and awarded defendant $50 in costs. The instant appeal by plaintiff ensued.

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, mailing receipts, denials (indicating that defendant received the claims) and other documents to be considered by the court. Consequently, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App [*2]Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC 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 raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims examiner established that the denials were timely mailed to plaintiff pursuant to defendant’s “routine office practice and procedures.” In addition, the affirmed peer review reports defendant annexed to its opposition papers present factual bases and medical rationales for the peer reviewers’ opinions and, therefore, raise triable issues of fact as to medical necessity (see e.g. A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the court below properly denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs pursuant to UDCA 1906 (a).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 26, 2006