April 29, 2008

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Med-Tech Product, Inc., was seeking to recover first-party no-fault benefits from the defendant, Liberty Mutual Ins. Co. The plaintiff submitted a claim form, but the defendant had timely denied the claim on the basis of lack of medical necessity. The main issue decided by the court was whether the plaintiff had established its entitlement to summary judgment, and whether the defendant had shown a triable issue of fact. The holding of the case was that the plaintiff's motion for summary judgment was properly denied, as the defendant had established a sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity. The order of the Civil Court denying the plaintiff's motion for summary judgment was affirmed without costs.

Reported in New York Official Reports at Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U))

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co. (2008 NY Slip Op 51469(U)) [*1]

Med-Tech Prod., Inc. v Liberty Mut. Ins. Co.

2008 NY Slip Op 51469(U) [20 Misc 3d 133(A)]

Decided on April 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1898 K C.

Med-Tech Product, Inc. a/a/o Yvette Rice, Appellant,
against
Liberty Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered July 7, 2006. The order denied plaintiff’s motion for summary judgment.Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory 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 [a]; Mary
Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers, acknowledged receipt of the claim on December 30, 2004, both in the affidavit of defendant’s claims representative as well as in its denial of claim form, the deficiency in plaintiff’s moving papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition, defendant established that it timely denied plaintiff’s claim on the ground of lack of medical necessity (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant’s opposing papers sets forth a
sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]), plaintiff’s motion for summary judgment was properly denied (id.).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008