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, Kings County (Richard Velasquez, J.), entered June 12, 2008. The order denied defendant’s motion for summary judgment.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that there was a triable issue of fact as to whether the alleged accident had occurred. The sole issue raised on appeal is whether defendant made a prima facie showing that plaintiff’s assignor’s injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), such that the burden shifted to plaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Since plaintiff failed to raise a triable issue of fact in opposition to the motion, defendant’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009

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, Kings County (Lila Gold, J.), entered December 11, 2007. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e) (see Curtis v Chetrit, 243 AD2d 423 [1997]; Breiterman v Haidt, 4 Misc 3d 130[A], 2004 NY Slip Op 50683[U] [App Term, 1st Dept 2004]). Plaintiff’s remaining contention is not preserved for appellate review.

Accordingly, the order granting defendant’s motion to dismiss the complaint is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009

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, Kings County (Wavny Toussaint, J.), entered February 26, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit a timely notice of claim (Insurance Department Regulations [11 NYCRR] § 65-1.1) and that plaintiff had failed to provide a “reasonable justification of the failure to give timely notice” (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]).

On appeal, plaintiff contends that defendant is not entitled to summary judgment because the affidavit of defendant’s no-fault adjuster is inadmissible inasmuch as it failed to comply with CPLR 2309 (c). However, as this contention is raised for the first time on appeal, it is waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff further argues that defendant is precluded from relying upon plaintiff’s untimely notice of claim because defendant’s denial of claim form did not advise plaintiff that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice,” as required by Insurance Department Regulations (11 NYCRR) § 65-3.3 (e). Said issue was likewise raised for the first time on appeal, as it differs from plaintiff’s contention in the Civil Court, which did not challenge the sufficiency of defendant’s denial of claim form but, [*2]rather, asserted that defendant did not demonstrate that plaintiff had failed to
provide a reasonable justification for the untimely notice of claim. Consequently, this contention by plaintiff is similarly waived. Accordingly, the order is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 24, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.; sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC and granted the branches of defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted by plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action is treated as an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the appeal by plaintiff D.A.V. Chiropractic, P.C. is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is modified by providing that so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion; as so modified, the order is affirmed without costs. [*2]

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignors from March 2004 through July 2004, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The District Court, sua sponte, stayed the action as to plaintiff A.B. Medical Services, PLLC (A.B. Med.) without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., so that said plaintiff “can properly dissolve and obtain the appointment of a receiver or liquidation trustee to maintain the action,” denied the branches of plaintiffs’ motion seeking summary judgment in favor of plaintiffs Lvov Acupuncture, P.C. (Lvov) and D.A.V. Chiropractic, P.C. (D.A.V.), and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov and D.A.V. The instant appeal by plaintiffs ensued.

For the reasons stated in A.B. Med. Servs., PLLC a/a/o Beauliere v Travelers Indem. Co. (___ Misc 3d ___, 2009 NY Slip Op _____ [Appeal No. 2009-549 N C], decided herewith), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med. is granted, said provision is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion.

It is uncontroverted that defendant’s denial of claim forms and verification requests were proper and timely. Contrary to Lvov’s contention, the denial of claim forms pertaining to Lvov clearly informed it of the insurer’s position regarding any disputed matter (see Insurance Department Regulations [11 NYCRR] § 65-3.2 [e]), and included the information called for in the prescribed denial of claim form (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). As the remaining contentions asserted by Lvov have no merit, the District Court properly denied the branch of plaintiffs’ motion seeking summary judgment in favor of Lvov and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov.

We note that no issue is raised on appeal regarding so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by D.A.V. Accordingly, the appeal by D.A.V. is deemed abandoned (see e.g. Pizzaro v State of New York, 19 AD3d 891 [2005]) and is, therefore, dismissed.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 09, 2009

[*1]

Supreme Court, Appellate Term, Second Department, December 9, 2009

APPEARANCES OF COUNSEL

Picciano & Scahill, P.C., Westbury (Jason Tenenbaum of counsel), for appellant. Ilona Finkelshteyn, P.C., Brooklyn, for respondent.

{**26 Misc 3d at 40} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served various discovery requests, seeking, among other things, to conduct an examination before trial of plaintiff. Subsequently, defendant served plaintiff’s assignor with a notice of deposition and notified plaintiff’s counsel of the deposition request. When the assignor failed to appear for the deposition, defendant moved to dismiss the complaint, arguing that, by virtue of the assignment, party status may be imputed to the assignor and, even if such status could not be so imputed, the assignor was under the plaintiff assignee’s control (see CPLR 3126 [3]). The Civil Court denied the motion, and defendant appealed.

By its terms, the CPLR 3126 (3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, NY Prac § 367 [4th ed]). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85). Similarly, a provider’s party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff’s assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff’s control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126 (Connors, Practice Commentaries, McKinney’s Cons Laws of [*2]NY, Book 7B, CPLR C3101:20; see Doelger, Inc. v L. Fatato, Inc., 7 AD2d 1003 [1959]; National Bank of N. Hudson v{**26 Misc 3d at 41} Kennedy, 223 App Div 680 [1928]; see also Schneider v Melmarkets Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Ctr., 117 AD2d 597 [1986]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51756[U] [App Term, 2d & 11th Jud Dists 2008]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Rios, J.P., Pesce and Golia, JJ., concur.

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 November 10, 2008. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon its third and fourth causes of action is denied, and defendant’s cross motion for summary judgment is granted to the extent of dismissing said causes of action; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. After the action was commenced, defendant paid the claims and accrued interest underlying plaintiff’s first and second causes of action. The Civil Court granted plaintiff’s motion for summary judgment, awarding plaintiff attorney’s fees and costs on its first and second causes of action, and judgment upon its third and fourth causes of action. The court implicitly denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to comply with 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]). Defendant’s assertion that plaintiff failed to prove submission of its claims to defendant lacks merit.

With respect to plaintiff’s third and fourth causes of action, defendant established that it had timely denied the claims at issue on the ground of lack of medical necessity (see St. Vincent’s [*2]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]). In support of its cross motion for summary judgment, defendant annexed, inter alia, an affirmed peer review report, which set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services rendered, which assertion was unrebutted (see 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]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff’s third and fourth causes of action, and plaintiff failed to raise a triable issue of fact with respect thereto. Accordingly, the branch of plaintiff’s motion seeking summary judgment upon its third and fourth causes of action is denied and defendant’s cross motion for summary judgment dismissing plaintiff’s third and fourth causes of action is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 07, 2009

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, Kings County (Dolores L. Waltrous, J.), entered April 24, 2008. The order denied defendant’s motion to sever the claim of each assignor into separate actions.

ORDERED that the order is reversed without costs and defendant’s motion to sever the claim of each assignor into separate actions is granted.

Plaintiff commenced this action to recover first-party no-fault benefits as assignee of two individuals. The claims allegedly arose out of two separate accidents. The Civil Court denied defendant’s motion pursuant to CPLR 603 to sever the causes of action into two separate actions.

Defendant’s answer clearly places at issue with respect to each assignor, among other things, the necessity and reasonableness of the particular medical services rendered. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). A severance can be properly based solely upon allegations set forth in the answer, and there is no need to demonstrate prejudice (see Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant’s motion to sever the causes of action should have been granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 07, 2009

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 (Thomas D. Raffaele, J.), entered August 5, 2008. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing plaintiff’s fourth and fifth causes of action.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action is granted; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly denied its cross motion for summary judgment dismissing the fourth and fifth causes of action. The Civil Court held that an issue of fact exists as to the medical necessity of the services which are the subject of said causes of action.

The affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim form, which denied the claim seeking to recover the sum of $425.44 (plaintiff’s fifth cause of action) on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practice and procedure (see 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]). Accordingly, with respect to said claim, defendant was not precluded from asserting its defense of lack of medical necessity.

In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

With respect to plaintiff’s fourth cause of action seeking to recover the sum of $134.80 for services rendered from April 5 to April 17, 2006, defendant failed to establish that it had timely denied said claim. Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fourth cause of action was properly denied.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009

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.), dated August 8, 2008. The order, insofar as appealed from as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action.

ORDERED that the order, insofar as appealed from, is reversed without costs, and defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as relevant to this appeal, plaintiff moved for summary judgment upon its first cause of action and defendant cross-moved for summary judgment dismissing said cause of action. The Civil Court found that there is an issue of fact as to medical necessity and denied the motion and, implicitly, the cross motion. Defendant appeals, contending that its cross motion seeking the dismissal of the first cause of action should have been granted.

The affidavits submitted by defendant in opposition to plaintiff’s motion and in support of its cross motion established that defendant had timely denied the claim at issue on the ground of lack of medical necessity, in accordance with defendant’s standard office practice or procedure used to ensure that the denial of the claim form was properly addressed and mailed (see 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]). Moreover, defendant annexed to its motion papers the affidavit and peer review report of its chiropractor, that set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services rendered, which [*2]assertions were unrebutted (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]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff’s first cause of action, and plaintiff failed to raise a triable issue of fact with respect thereto. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009

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, Kings County (Dawn Marie Jimenez, J.), entered July 11, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s supervisor of medical billing in support of the motion was sufficient to establish that the documents annexed to plaintiff’s moving papers 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]). In addition, as the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish actual mailing of the denial of claim forms or its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (see 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]). Accordingly, as defendant was precluded from interposing its
defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court properly granted plaintiff’s motion for summary judgment. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009