April 22, 2009

Mollins v State Farm Gen. Ins. Co. (2009 NY Slip Op 50763(U))

Headnote

The court considered that the plaintiff, a chiropractor, had submitted proof that the statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue. The main issue decided was whether the defendant, State Farm General Insurance Company, had timely denied the plaintiff's no-fault claims, and whether the defendant's defense of lack of medical necessity was admissible. The holding of the case was that the plaintiff was granted summary judgment in the principal sum of $554.76 because they had established a prima facie entitlement to summary judgment, and the defendant failed to raise a triable issue. The unsworn chiropractor's report submitted by the defendant in support of its defense of lack of medical necessity was not in admissible form, and was thus excluded from consideration.

Reported in New York Official Reports at Mollins v State Farm Gen. Ins. Co. (2009 NY Slip Op 50763(U))

Mollins v State Farm Gen. Ins. Co. (2009 NY Slip Op 50763(U)) [*1]

Mollins v State Farm Gen. Ins. Co.

2009 NY Slip Op 50763(U) [23 Misc 3d 134(A)]

Decided on April 22, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, JJ
570231/08.

Jeff Mollins, D.C. a/a/o Peggy Winns, Plaintiff-Appellant, – –
against
State Farm General Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 17, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 17, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $554.76 is granted. The Clerk is directed to enter judgment accordingly.

Plaintiff established a prima facie entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue. Even assuming that defendant timely denied plaintiff’s no-fault claims, the unsworn chiropractor’s report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form, a defect which requires its exclusion from consideration (see CPLR 2106; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], 2007 NY Slip Op 50138[U] [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur
Decision Date: April 22, 2009