November 13, 2006

Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U))

Headnote

The court considered that plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims and that payment of no-fault benefits was overdue. The defendant's acknowledgment of receipt on its denial form cured any deficiencies in the plaintiff's proof of mailing. However, the court ruled that the defendant's denial was untimely, precluding most defenses. The untimely denial did not preclude the defendant from interposing the defense that the injuries were not causally related to the accident, but the defendant's accident analysis report was not in admissible form. The court affirmed the order without costs. Therefore, the main issues decided included the timeliness of the denial, whether the injuries were caused by the accident, and the admissibility of the defendant's accident analysis report. The holding of the case was that the plaintiff was entitled to summary judgment and the defendant's denial was untimely.

Reported in New York Official Reports at Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U))

Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U)) [*1]

Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 52250(U) [13 Misc 3d 140(A)]

Decided on November 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1647 Q C.

Executive MRI Imaging, P.C. AS ASSIGNEE OF FLOYD HARDEN, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiencies, if any, with regard to plaintiff’s proof of mailing were “cured by defendant’s acknowledgment of receipt on its denial form” which was attached to plaintiff’s papers (Fair Price Med. Supply Corp. v ELRAC Inc. & Enterprise Rent-A-Car, 12 Misc 3d 119 [App Term, 2d & 11th Jud Dists 2006]; 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 denial form, dated [*2]December 3, 2003, alleged that defendant issued a verification request on November 17, 2003, 66 days after the claims’ receipt (September 12, 2003). Even if proof of such verification request had been presented in admissible form, the request was untimely (11 NYCRR 65-3.5 [a], [b]; 11 NYCRR 65-3.8 [a], [1]). Under the circumstances, defendant’s denial was untimely (11 NYCRR 65-3.8 [a] [1], [c]), precluding most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The untimely denial, however, did not preclude defendant from interposing the defense that the assignor’s injuries were not causally related to the accident (e.g. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]), that is, that there was no causal nexus between the accident and the injuries for which the assignor was treated (Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; see Valentine v Grossman, 283 AD2d 571, 572 [2001]). An accident analysis report in the form of a “low impact study” can be a proper basis for a denial (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]), “provided it is in admissible form” (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U], supra). However, defendant’s report was not in admissible form (see Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U], supra; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). Recognizing the deficiency, defendant resubmitted the report in admissible form, but only for the first time in sur-reply when plaintiff had no opportunity to respond to its content (Dannasch v Bifulco, 184 AD2d
415, 416 [1992]). The court below declined to consider the affidavit, and matters disregarded below as improperly raised in reply may not be considered on appeal (e.g. Wager v Hainline, 29 AD3d 569 [2006]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 13, 2006