December 31, 2014

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51888(U))

Headnote

In this case, the defendant-insurer appealed an order from the Civil Court of the City of New York which denied, in part, its motion for summary judgment dismissing the complaint. The insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff's no-fault claims for medical supplies provided to the assignor, establishing proper and timely mailing of denial of claim forms and submitting a sworn peer review report stating that the medical supplies were not medically necessary. The plaintiff's opposing submission was deemed insufficient to raise a triable issue, as it consisted of an attorney's affirmation unaccompanied by any medical evidence or other competent proof. The Court affirmed the order in part, granting the defendant's motion for summary judgment dismissing claims in the aggregate amount of $1,710.05, but also sustained the denial of the defendant's motion for summary judgment dismissing the $1,080 claim for medical supplies provided to the assignor on June 27, 2011.

Reported in New York Official Reports at Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51888(U))

Five Boro Medical Equipment, Inc., a/a/o Anthony Coston, Plaintiff-Respondent,
against
New York Central Mutual Fire Insurance Company Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated May 22, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), dated May 22, 2013, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claims seeking no-fault first-party benefits in the aggregate amount of $1,710.05; as modified, order affirmed, with $10 costs to defendant-appellant.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims in the total sum of $ 1,710.75, for medical supplies provided to plaintiff’s assignor on June 2, 2011 and June 22, 2011, by establishing its proper and timely mailing of the denial of claim forms at issue herein (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]), and submitting a sworn peer review report which set forth a sufficient factual basis and medical rationale for the stated conclusion that the medical supplies provided to the assignor were not medically necessary (see Triangle R. Inc. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143[A], 2011 NY Slip Op 51663[U] [App Term, 1st Dept 2011]). Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).

We sustain so much of the order under review as denied defendant’s motion for summary judgement dismissing plaintiff’s claim of $1,080 for medical supplies provided to plaintiff’s assignor on June 27, 2011, since defendant’s own moving papers tend to indicate that this claim was not timely denied (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 317 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1990]).

Plaintiff’s remaining arguments are either unpreserved for appellate review or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 31, 2014