Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered November 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Contrary to the determination of the court below, in this action to recover first-party no-fault benefits for medical services rendered to its assignors for injuries they sustained in accidents in February and May 2003, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). Since defendant failed to seek verification of any of the assignments, and did not allege any deficiency in the assignments in its denial of claim forms, it waived any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & [*2]Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Defendant failed to raise a triable issue of fact as to the $912 claim (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). It is uncontroverted that defendant received plaintiff’s $912 claim in July 2003, for which it requested, in October 2003, additional verification in the form of an examination under oath. Since defendant failed to show how its October request was timely made (see 11 NYCRR 65-3.5 [b]), we find that said [*3]
request was untimely and the 30-day statutory period within which it had to pay or deny the claim was not tolled (see e.g. Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864 [App Term, 9th & 10th Jud Dists]). Assuming, arguendo, that the additional verification request was timely, defendant would have, nonetheless, failed to raise a triable issue of fact since it did not provide plaintiff with a follow-up request after the assignor did not appear for the scheduled examination (see 11 NYCRR 65-3.6 [b]). By not providing plaintiff with a follow-up request, defendant abandoned its verification request and may not, as a matter of law, use the failure of the plaintiff to provide said verification as a basis to deny the claim (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses as to the $912 claim, and plaintiff is entitled to summary judgment thereon.

In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the [*4]
medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.

In view of the foregoing, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum. [*5]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Salena Harrell
Jose Batiz,

Appellant,

-against-
ALLSTATE INSURANCE COMPANY,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in the cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I must also note an important precept of law that has been properly applied in this case but is all too often forgotten. Once a party affirmatively and properly establishes an issue of fact, it is incumbent upon the other side to oppose it either factually or on “legal’ grounds. Failure to do so will result in that particular issue being determined in favor of the proponent (Millennium Med. Instruments v NYC Trans. Auth., 10 Misc 3d 139[A], 2005 NY Slip Op 52205[U] [App Term, 2d & 11th Jud Dists]). It must be remembered that this precept must be applied equally to both sides.

In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.

Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven. [*6]
Decision Date: February 03, 2006