Expo Med. Supplies, Inc. v St. Paul Fire & Mar. Ins. Co. (2006 NY Slip Op 52251(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, Kings County (Eileen Nadelson, J.), entered September 26, 2005. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, the court below denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment on the ground that neither party had established its prima facie entitlement to judgment as a matter of law by competent
proof in admissible form. Defendant appeals from so much of the order as denied its cross motion for summary judgment and we affirm.

Defendant timely denied the claim citing a peer review report which, according to the denial form, “revealed that the service provided was not medically necessary.” The denial form did not indicate that the peer review report was attached to the denial. Nor did defendant’s affiant state in its cross motion papers that the report was ever mailed to plaintiff, much less that defendant did so within 30 days of the claim’s receipt. The denial form otherwise contained no facts to satisfy the statutory claim form’s requirement that the insurer: “State reason for denial, [*2]fully and explicitly (attach extra sheets if needed)”. Even a timely denial does not avoid the preclusion sanction “where said denial is factually insufficient, conclusory or vague” (A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30, 31 [App Term, 2d & 11th Jud Dists 2006]; see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]). While an insurer is not required to attach the peer review report to its denial of claim form (as implied by 11 NYCRR 65-3.8 [b] [4]), in such a case the denial form itself must set forth, with the requisite particularity, the factual basis and medical rationale for the denial (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11thain Jud Dists 2005]), or at the very least, the insurer must supply claimant with the report within 30 days of the claim’s receipt, absent a tolling of the statutory claim determination period (SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists 2006]). As defendant proved compliance with neither rule, it is precluded from asserting the defense (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra [a denial form’s factual insufficiency with respect to a lack of medical necessity defense is not cured by attaching a peer review report to papers opposing a motion for summary judgment]). In the absence of any other ground to support its cross motion, defendant failed to establish its prima facie entitlement to summary judgment.

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