SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (P. O’Donoghue, J.), dated December 6, 2000, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

The plaintiff instituted this action under the No-Fault Law to recover for medical services it provided to its assignor. In support of its motion for summary judgment, plaintiff submitted its claim forms and the defendant’s denial of the claims based upon an affirmed peer review report submitted by its doctor.

The order denying plaintiffs motion for summary judgment should be affirmed. The plaintiffs prima facie showing was opposed by an affirmed medical report raising a triable issue of fact. The defense of lack of medical necessity may be based either on a medical examination or a sufficiently detailed peer review report, as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8 (b) (4). Here, defendant timely denied plaintiffs no-fault benefits claim following a file-based peer review which, in our view, set forth a factual basis and medical rationale sufficient to create a triable issue as to the treatment’s medical necessity (Rockawav Blvd. Medical P.C.. Park Health Ctr. v Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).
Decision Date: December 22, 2003

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Suffolk County (H. Bergson, J.), entered October 18, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in its “geographic location” (cf. 11 NYCRR 68.5 [b], Reg. No. 83). The Insurance Department regulation permitting reference to “the prevailing fee in the geographic location of the provider” to determine appropriate no-fault compensation pertains only where “the superintendent has not adopted or established a fee schedule applicable to the provider” (id.; e.g. Tucciarone v Progressive Ins. Co., 204 AD2d 864 [1994]). The regulations, however, explicitly limit a provider’s medical equipment claims to 150 percent of cost (11 NYCRR App. 17-C, Part E [b] [1]) which clearly is an applicable fee schedule within the contemplation of 11 NYCRR 69.5 (b) (see King’s Med. Supply v Travelers Prop. Cas. Corp., 194 Misc 2d 667, 673 [2003]). As “[tjhe purpose of [Insurance Law § 51083 and the fee schedules promulgated thereunder [was] ‘to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989]), we must assume that the 150 percent rule represents a legislative determination that the net effect of this straightforward, categorical limitation on fees, coupled with suppliers’ marketplace competition to moderate prices (or at least to minimize price disparities), “help[s] contain the no-fault premium” (id.). If the premises underlying this [*2]determination are empirically unsound, the solution is remedial legislation.
Decision Date: December 22, 2003

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Suffolk County (H. Bergson, J.), entered October 23, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in its “geographic location” (cf. 11 NYCRR 68.5 [b], Reg. No. 83). As defendant preserved no other proper defense to the action, plaintiff’s motion for summary judgment should have been granted for the reasons set forth in King’s Med. Supply Inc. v Allstate Ins. Co., (No. 2003-50 S C [decided herewith]).
Decision Date: December 22, 2003

[*1]

Supreme Court, Appellate Term, Second Department, December 9, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

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

Memorandum.

Order unanimously reversed without costs, motion for summary judgment on their claims granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.{**2 Misc 3d at 27}

In this action to recover $4,643.74 in first-party no-fault benefits, two of the plaintiffs moved for summary judgment, Royalton Chiropractic P.C. on two claims, one for $1,730.58 for tests rendered April 13, 2001, and one for $1,757.62 for tests rendered April 16, 2001, and A.B. Medical Services, PLLC on its two claims, each for $302.12. Defendant opposed, citing said plaintiffs’ failure to prove the treatments’ medical necessity and otherwise to allege a prima facie case for summary judgment. Summary judgment should have been granted as to the four claims.

We have rejected arguments that a no-fault benefits claimant is obligated to prove the treatment’s medical necessity, at the claim stage or in support of its motion for a summary judgment in a subsequent action on the claim (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] [decided herewith]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U]; Park Health Ctr. v Prudential Prop. & [*2]Cas. Ins. Co., 2001 NY Slip Op 40650[U]; see also Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]). Having failed to timely mail or otherwise deliver its determination form with respect to Royalton’s $1,730.58 claim, that is, to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8 [c]) within 30 days of receipt as required by Insurance Law § 5106 (a) (see Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]; Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]), defendant waived nearly all objections and defenses thereto, relating to the adequacy of the proof of claim (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]) or to its propriety (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v Empire Ins. Co., 295 AD2d 325 [2002]). We also agree that defendant failed to demonstrate that it took any action on Royalton’s $1,757.62 claim after Royalton timely responded to its request for medical verification, thereby waiving any defenses to said claim. Finally, given A.B. Medical Services’ unrebutted proof that it mailed Kaufman’s claims on September 24, 2001, defendant’s March 2002 verification requests were clearly untimely (11 NYCRR 65-3.5 [a]; 65-3.6 [b]) and thus summary judgment should also be granted as to this claim.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $4,092.44, the portion of the claim for which summary judgment {**2 Misc 3d at 28}was sought (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (J. Sullivan, J.), entered September 18, 2002, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action, pursuant to Insurance Law § 5101 et seq. to recover first-party no-fault benefits for health services it provided to its assignors Martha DeJean and Jean Samuel Emmanuel for injuries they sustained in an automobile accident, and for statutory interest and attorneys fees. Thereafter, plaintiff moved for summary judgment on the ground that defendant did not pay or deny its claim within the 30-day period as provided by Insurance Law § 5106 (a). By order entered September 18, 2002, the court below denied plaintiff’s motion, from which this appeal ensues.

It is uncontroverted that defendant received plaintiff’s complete claim for $1,671.66 on July 18, 2000 ($759.33 for DeJean and $912.33 for Emmanuel). Defendant denied the part of the claim as to Emmanuel on December 13, 2000 and denied the part of the claim as to DeJean on December 15, 2000. Considering plaintiff’s failure to respond to defendant’s valid and timely requests for verification, defendant has rebutted plaintiff’s prima facie case, established through submission of its claim forms, by showing that plaintiff did not submit a completed proof of claim and that therefore plaintiff was no longer entitled to summary judgment by virtue of the fact that defendant did not timely pay or deny said claim (see Insurance Law Ы 5106 [a]; 11 NYCRR 65.15 [d], [g]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699). To hold otherwise would allow plaintiff to obtain the benefits of the insurance regulations without having to abide by them. Consequently, defendant has shown a triable issue of fact, thereby [*2]defeating plaintiff’s motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Defendant’s papers in opposition raised an additional issue of fact by showing that fraud was committed as to the part of the claim concerning Emmanuel (see Metro Medical Diag. v Eagle Ins. Co., 293 AD2d 751; see also Central Gen. Hosp. v Chubb Group Ins. Cos., 90 NY2d 195).

Accordingly, we find that the court below properly denied plaintiff’s motion for summary judgment.
Decision Date: October 21, 2003