December 13, 2006

Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co. (2006 NY Slip Op 52493(U))

Headnote

The relevant facts the court considered were that Starrett Medical L.C.P.C was seeking to recover assigned first-party no-fault benefits from GEICO Casualty Insurance Company. The issues decided were whether the plaintiff's moving papers established entitlement to summary judgment and whether the defendant's denial of claim forms set forth a sufficient factual basis and medical rationale for denial based on lack of medical necessity. The holding of the court was that the plaintiff's moving papers were insufficient to establish the mailing of claim forms, but this deficiency was cured by the defendant's denial of claim forms. Additionally, the court held that the defendant was precluded from asserting lack of medical necessity as a defense due to the insufficient factual basis for the denial. Consequently, the order granting the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co. (2006 NY Slip Op 52493(U))

Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co. (2006 NY Slip Op 52493(U)) [*1]

Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co.

2006 NY Slip Op 52493(U) [14 Misc 3d 127(A)]

Decided on December 13, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-1862 K C. NO.2005-1862 K C

Starrett Medical L.C.P.C., a/o Jose Vidal, Francois Emery, Ilissa Codrington, and Marilyn Ford, Respondent,
against
GEICO Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claim forms, setting forth the fact and the amounts of the losses 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 [2005]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of any of the appended claim forms to defendant. However, said deficiency was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and defendant received, said claim forms (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]).

This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon a lack of medical necessity, the defendant is precluded from asserting said defense (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists]; SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s NF-10 denial of claim forms merely advised plaintiff that the claims were denied pursuant to peer review reports [*2]and that a copy of these reports would be furnished upon written request. Since there is no evidence that the peer review reports were sent to plaintiff within the 30-day claim determination period, and the denials were otherwise devoid of any factual basis to support them, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], supra) and plaintiff is entitled to summary judgment upon said claims.

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

Golia, J., concurs in a separate memorandum.

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

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 13, 2006