Innovative Chiropractic, P.C. v Progressive Ins. Co. (2010 NY Slip Op 50148(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 22, 2008, deemed from a judgment of the same court entered September 29, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 28, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $233.70.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on so much of the claim as sought to recover the sum of $33.70 for services rendered on January 19, 2007, upon a search of the record, summary judgment is granted to defendant dismissing the complaint with respect to the remaining portion of plaintiff’s claim, which sought to recover the sum of $200, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees due on the award of $33.70.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment on a claim in the sum of $233.70, finding that defendant had failed to prove that of the $233.70 in dispute, $200 “was applied to the assignor’s [insurance policy] deductible.” The Civil Court further found that the remaining $33.70 in dispute was properly billed by plaintiff. Defendant argues on appeal that the Civil Court erred in awarding summary judgment to plaintiff and that, upon a search of the record, defendant should be granted summary judgment.

Contrary to defendant’s contention on appeal, the affidavit submitted by plaintiff’s billing manager was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v [*2]Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, plaintiff established that its billing manager had personally mailed the claim form to defendant, and defendant’s litigation representative conceded receipt of the claim form (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to plaintiff’s motion, defendant submitted the affidavit of defendant’s litigation representative, which established that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard office practice and procedure (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]). However, said affidavit did not mention the bill for $33.70 for services rendered on January 19, 2007. Although defendant’s counsel asserted that such bill was denied as duplicative, since counsel did not establish that he possessed personal knowledge of the pertinent facts, defendant failed to demonstrate the existence of a triable issue of fact with respect thereto and, thus, plaintiff was properly awarded summary judgment with respect to said bill (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In contrast, defendant did demonstrate that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of the claim at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Consequently, under the circumstances presented herein, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint with respect to the bills totaling $200, which bills defendant had denied based upon the $200 deductible (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is granted in the sum of $33.70 for services rendered on January 19, 2007, upon a search of the record, defendant is awarded summary judgment dismissing the complaint insofar as it sought to recover upon the claims totaling $200, which sum satisfied the insurance policy’s deductible, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon said $33.70 bill pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 29, 2010