November 2, 2006

Vega Chiropractic, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52238(U))

Headnote

The court considered the fact that the defendant had received the claim forms in question in an action to recover assigned first-party no-fault benefits. The main issue was whether the plaintiff had established a prima facie case, and if the defendant had demonstrated the existence of a triable issue of fact. The holding of the case was that the lack of authentication of the assignor's signature did not constitute a defect, as there was no statutory or regulatory requirement for the same. Additionally, the defendant's opposition papers established that the plaintiff's assignor had been sent a request to appear for pre-claim independent medical examinations and had failed to appear, leading to the conclusion that the services rendered by the plaintiff were not medically necessary. As a result, the defendant's opposition papers raised a triable issue of fact, leading to the denial of the plaintiff's motion for summary judgment.

Reported in New York Official Reports at Vega Chiropractic, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52238(U))

Vega Chiropractic, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52238(U)) [*1]

Vega Chiropractic, P.C. v Eveready Ins. Co.

2006 NY Slip Op 52238(U) [13 Misc 3d 139(A)]

Decided on November 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1793 K C.

Vega Chiropractic, P.C., A/A/O RHEA MCLEAN, Appellant,
against
Eveready Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the
lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would [*2]not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.

The remaining contentions lack merit.

Pesce P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006