Staten Is. Advanced Surgical Supply v GEICO Ins. Co. (2009 NY Slip Op 52633(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 9, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 9, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $575.30.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to a motion by plaintiff for summary judgment,
that plaintiff had failed to establish a prima facie case and that defendant had timely denied plaintiff’s bill on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, and defendant appealed. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Since the affidavit of defendant’s claims representative conceded receipt of the claim in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s prima facie entitlement to summary judgment was established.

In opposition to the motion, defendant established that it had timely mailed its request for verification and subsequent denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that items were properly [*2]addressed and mailed (see e.g. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also annexed a copy of the affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the equipment provided was not medically necessary (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant raised a triable issue of fact and, thus, plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009