Ying E. Acupuncture, P.C. v Global Liberty Ins. (2008 NY Slip Op 51863(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 (Diane A. Lebedeff, J.), entered March 5, 2007. The order granted plaintiff’s motion for summary judgment.

Order modified by granting plaintiff’s motion for summary judgment to the extent of awarding it summary judgment on its claims seeking the sums of $184.29, $98.01, $130.68, $32.67, $130.68, $98.01, $60 and $30, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, and submitted two denials, which denied plaintiff’s claims on the grounds of concurrent care and the lack of medical necessity for the services rendered. The court granted plaintiff’s motion for summary judgment, finding that defendant’s opposition papers failed to “include a report showing the subject alleged concurrent care.” The instant appeal by defendant ensued.

While defendant contended that it timely denied plaintiff’s claims seeking to recover the sums of $184.29, $98.01, $130.68, $32.67, $130.68, $98.01 and $60, plaintiff asserted that the denials of said claims were either untimely or not issued. Since defendant’s claims manager did not personally mail the denials for these claims, and did not set forth defendant’s standard office practice or procedure to ensure that denials are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant did not [*2]establish that the denials, dated November 2005, were timely mailed. Thus, defendant is precluded from raising most defenses including its proffered defenses of concurrent care and lack
of medical necessity with respect to these claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff was entitled to summary judgment upon said claims.

With respect to defendant’s denial of plaintiff’s claims seeking to recover the sums of $90, $150 and $30, the record indicates that plaintiff, in effect, conceded that the denial of claim form pertaining to said claims was timely. These claims were denied on the ground of concurrent care. However, defendant failed to establish an issue of fact with respect to said defense since it did not submit an affidavit from a person with the relevant training and/or educational background to competently assess whether the claims sought payment for treatment which constituted concurrent care. These claims were also denied based upon an affirmed independent medical examination (IME) report, a copy of which was attached to defendant’s opposing papers. Since the IME report set forth a sufficient factual basis and medical rationale for the conclusion that the services rendered after the IME was conducted, for which plaintiff seeks to recover the sums of $90 and $150, were not medically necessary, plaintiff’s motion for summary judgment should have been denied as to these two claims (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]). However, since plaintiff’s claim seeking the sum of $30 was for services rendered before the IME was conducted, the IME report, which indicated that, as of the date of the IME, there was no medical necessity for further treatment, is insufficient to demonstrate the existence of an issue of fact as to the medical necessity of such services. Consequently, plaintiff was entitled to summary judgment upon the $30 claim.

Accordingly, plaintiff is awarded partial summary judgment on its $184.29, $98.01, $130.68, $32.67, $130.68, $98.01, $60 and $30 claims, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to 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: September 03, 2008