Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51189(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, Queens County (Valerie Brathwaite Nelson, J.), entered December 27, 2004. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,133, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining portion of the claim; as so modified, affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered December 27, 2004, the court below denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint.

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). While the affidavit submitted by plaintiff is insufficient to establish the mailing of the appended claim [*2]forms to defendant, the deficiency in plaintiff’s moving papers concerning proof of its submission of the claims was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and that defendant received, the claim forms at issue (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). Thus, plaintiff established a prima facie case entitling it to summary judgment. However, we find that since the prescription for plaintiff’s assignor did not mention a “TENS accessory kit,” for which plaintiff seeks $110 in its claim for the sum of $1,172, plaintiff failed to establish its prima facie entitlement to summary judgment therefor (see Adam’s Med. Supplies v Windsor Group Ins. Co., 3 Misc 3d 126[A], 2004 NY Slip Op 50310[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to establish a triable issue of fact with respect to the $1,071 claim and the $1,062 balance of its $1,172 claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant asserted that the aforementioned claims were timely denied based on a peer review which after it requested certain verification from plaintiff concluded that the supplies allegedly provided were not medically necessary. However, since defendant acknowledged in both denial of claim forms that it received final verification from plaintiff on July 18, 2003 and both denial of claim forms were dated August 26, 2003, defendant failed to timely deny plaintiff’s claim within the statutorily prescribed 30-day period (11 NYCRR 65-3.8 [c]). Accordingly, defendant’s untimely denials of the claims precluded defenses to the action, with exceptions not herein relevant, and warranted the granting of summary judgment in plaintiff’s favor (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

In view of the foregoing, defendant’s cross motion for summary judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,133, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder and for all further proceedings on the remaining portion of the claim.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., 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. [*3]
Decision Date: June 15, 2006