March 8, 2010

Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U))

Headnote

The court considered the facts of a case in which a provider was seeking to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant was entitled to summary judgment dismissing plaintiff's second cause of action. The court held that the affidavit of the defendant's claims representative sufficiently established the timely mailing of the claim denial form, and they made a prima facie showing of entitlement to summary judgment. However, the plaintiff's submission of a doctor's affirmation raised a triable issue of fact as to medical necessity, leading the court to deny the defendant's cross motion seeking summary judgment dismissing the plaintiff's second cause of action.

Reported in New York Official Reports at Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U))

Infinity Health Prods., Ltd. v Mercury Ins. Co. (2010 NY Slip Op 50385(U)) [*1]

Infinity Health Prods., Ltd. v Mercury Ins. Co.

2010 NY Slip Op 50385(U) [26 Misc 3d 142(A)]

Decided on March 8, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-895 K C.

Infinity Health Products, Ltd. as assignee of Alfonzo Ruiz, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 7, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

The affidavit of defendant’s claims representative sufficiently established the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In support of its cross motion, defendant also submitted the affidavit and peer review report of its chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the medical equipment for which plaintiff sought payment in its second cause of action. As a result, defendant made a prima facie showing of its entitlement to summary judgment dismissing plaintiff’s second cause of action (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]), and the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.

As the doctor’s affirmation submitted by plaintiff in opposition to the cross motion was [*2]sufficient to raise a triable issue of fact as to medical necessity, the Civil Court properly denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action. Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010