January 26, 2009

Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U))

Headnote

The main issue in the case was whether the plaintiff had established a prima facie case for summary judgment in an action to recover assigned first-party no-fault benefits. The court held that the plaintiff had established its prima facie entitlement to summary judgment by proving the submission of a claim form, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue. The court also addressed the defendant's attempt to demonstrate an issue of fact as to the medical necessity of the services rendered, and found that the defendant's claims representative's affidavit did not establish actual mailing of the denials nor give rise to the presumption that they were mailed. As a result, the defendant was precluded from raising its proffered defense of lack of medical necessity, and the judgment in favor of the plaintiff was affirmed.

Reported in New York Official Reports at Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U))

Gashinskaya v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51283(U)) [*1]

Gashinskaya v State Farm Mut. Auto. Ins. Co.

2009 NY Slip Op 51283(U) [24 Misc 3d 127(A)]

Decided on January 26, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-1982 Q C

Aleksandra Gashinskaya, M.D., PM & R as assignee of Melvin Brown, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), entered July 24, 2006, deemed from a judgment of the same court entered September 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 31, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,970.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant contends that plaintiff failed to establish a prima facie case because plaintiff did not allege that defendant’s denial of claim forms were untimely. This contention
lacks merit since a plaintiff provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Payments are overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]). In the instant case, inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the court’s determination with respect thereto.

To the extent that defendant sought to demonstrate the existence of an issue of fact as to the medical necessity of the services rendered, the affidavit of defendant’s claims representative neither established actual mailing of the denials nor gave rise to a presumption that they were mailed because it did not set forth the standard office practice or procedure designed to ensure that items are properly addressed and mailed which was utilized in the office from which the subject denial of claim forms were allegedly mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, defendant is precluded from raising its proffered defense of lack of medical [*2]necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Consequently, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.
Decision Date: January 26, 2009