September 2, 2008

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U))

Headnote

The court considered the denial of first-party no-fault benefits by the insurance company based on peer review reports that found a lack of medical necessity for the services provided by the plaintiff. The main issue was whether the denial of the claims was valid and whether the insurer sufficiently informed the plaintiff of the reasons for the denial. The court held that the denial of the claims was not vague or misleading, as the insurer's NF-10 denial of claim forms clearly stated the basis for the denial and the accompanying explanation of benefits forms provided further explanation. The court also held that it was improper for the court to grant summary judgment to the defendant based on the issue of medical necessity since this was not the subject of the plaintiff's motion for summary judgment. Therefore, the judgment denying the plaintiff's motion for summary judgment and granting summary judgment to the defendant was reversed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U))

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U)) [*1]

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.

2008 NY Slip Op 51852(U) [20 Misc 3d 144(A)]

Decided on September 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2006-1987 K C.

Delta Diagnostic Radiology, P.C. a/a/o Bienvenida Martinez, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 23, 2006, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 23, 2006 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment dismissing the complaint, dismissed the complaint.

Judgment reversed without costs and so much of the order as granted defendant summary judgment dismissing the complaint vacated.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claims based upon peer review reports which determined that there was a lack of medical necessity for the services rendered by plaintiff. In addition to the peer review reports, defendant submitted an affidavit executed by the chiropractor who performed the peer reviews. The court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted summary judgment to defendant dismissing the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

Contrary to plaintiff’s contention, defendant’s NF-10 denial of claim forms were not “vague” and “misleading” as to the insurer’s basis for denial. Each NF-10 form stated that defendant was paying nothing upon the claim and that the entire sum remained in dispute. In addition, the explanation of benefits forms which accompanied defendant’s NF-10 forms unequivocally stated that each claim was denied based upon a peer review report which also accompanied the applicable NF-10. As a result, the NF-10 forms were sufficient to apprise plaintiff of the reason for the denial of plaintiff’s claims (see A.B. Med. Servs., PLLC v Liberty [*2]Mut. Ins. Co., 39 AD3d 779 [2007]).

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the action (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Plaintiff’s remaining contention is raised for the first time on appeal and we decline to reach it.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008