July 28, 2008

Gotham Acupuncture, P.C. v Country Wide Ins. Co. (2008 NY Slip Op 51615(U))

Headnote

The court considered the plaintiff's motion for summary judgment in a case involving the recovery of first party no-fault benefits from the defendant insurance company. The main issue decided was whether the defendant had timely denied the claim forms within the prescribed 30-day period, which would affect their ability to assert statutory exclusion defenses such as excessive fees and lack of medical necessity. The holding of the court was that the plaintiff's motion for summary judgment in the principal sum of $2,420 was granted, and the defendant was found to be precluded from asserting the statutory exclusion defenses due to the lack of competent proof of timely denial of claim forms. Thus, the court reversed the previous denial of the plaintiff's motion and ordered the Clerk to enter judgment accordingly.

Reported in New York Official Reports at Gotham Acupuncture, P.C. v Country Wide Ins. Co. (2008 NY Slip Op 51615(U))

Gotham Acupuncture, P.C. v Country Wide Ins. Co. (2008 NY Slip Op 51615(U)) [*1]

Gotham Acupuncture, P.C. v Country Wide Ins. Co.

2008 NY Slip Op 51615(U) [20 Misc 3d 141(A)]

Decided on July 28, 2008

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., SCHOENFELD, HEITLER JJ
570713/07.

Gotham Acupuncture, P.C. a/a/o Carmen Torres, Plaintiff-Appellant, – –
against
Country Wide Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Diane A. Lebedeff, J.), entered March 31, 2006, which denied its motion for summary judgment without prejudice to renewal.

Per Curiam.

Order (Diane A. Lebedeff, J.), entered March 31, 2006, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $2,420 granted. The Clerk is directed to enter judgment accordingly.

In opposition to plaintiff’s prima facie showing of entitlement to summary judgment recovery of first party no-fault benefits (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742[2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]), defendant failed to submit competent proof that it timely mailed its denial of claim forms within the prescribed 30-day period. Thus, defendant is precluded from asserting statutory exclusion defenses, including its defenses of excessive fees (see Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]) and lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: July 28, 2008