August 23, 2012

Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U))

Headnote

The relevant facts considered by the court in the case of Neomy Medical, P.C. v Clarendon National Insurance Company involved a provider seeking to recover assigned first-party no-fault benefits from the insurance company. The main issue decided was whether the insurance company had timely denied the claims at issue and if it was precluded from raising its defense of lack of medical necessity. The court held that the insurance company's affidavit failed to establish that it had timely denied the claims, and therefore, the provider's claims were not precluded. Therefore, the court affirmed the denial of the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U))

Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U)) [*1]

Neomy Med., P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 51639(U) [36 Misc 3d 147(A)]

Decided on August 23, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1682 K C.

Neomy Medical, P.C. as Assignee of MICHAEL WALTERS, Respondent, —
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 5, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion failed to establish that defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied defendant’s cross motion, as defendant failed to demonstrate that it was not precluded from raising its proffered defense of lack of medical necessity.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012