Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))

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 (Alice Fisher Rubin, J.), entered August 27, 2009. The order denied defendant’s cross motion for summary judgment dismissing the complaint and its motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case, and granted plaintiff’s cross motion for a protective order.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and cross motion for a protective order are denied; 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 an order which denied defendant’s cross motion for summary judgment dismissing the complaint, denied defendant’s motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s cross motion for a protective order, and granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case.

This action involves three claim forms for psychological services provided to plaintiff’s assignor. As to the claim form seeking to recover the sum of $120 dated May 22, 2006, the affidavit of defendant’s no-fault specialist established that defendant had timely requested additional verification of this claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to respond to defendant’s initial and follow-up requests. As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the cause of action relating to this bill is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

With respect to the other two claims at issue in this lawsuit ($1,061.63 and $120), defendant established that it had timely denied these claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) on the ground that the services provided were not medically necessary. In support of its cross motion for summary judgment, defendant submitted, among other things, sworn peer review reports which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for the services for which payment was sought (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]). Plaintiff failed to rebut defendant’s evidence of the lack of medical necessity for these services. Consequently, defendant established its entitlement to summary judgment as to these two bills.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and its cross motion for a protective order are denied.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011