Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co (2006 NYSlipOp 50491(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, Kings County (Peter Paul Sweeney, J.), entered August 1, 2005. The order granted defendant’s motion to compel responses to its bill of particulars and discovery demands, and denied plaintiff’s cross motion for summary judgment.

Order modified by denying defendant’s motion insofar as it sought to compel plaintiff to respond to its demand for a bill of particulars, with leave to defendant to serve an amended demand in accordance with the decision herein within 30 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order compelling plaintiff to respond to its bill of particulars, its demand for records, and its request for an examination before trial or, in the alternative, striking plaintiff’s pleadings. Plaintiff cross-moved for summary judgment, which motion defendant opposed. Thereafter, the court below granted defendant’s motion, directing plaintiff to respond to the bill of particulars and to “produce a witness with knowledge of facts in the complaint.” The court denied plaintiff’s cross motion, finding that plaintiff “failed to prove its prima facie case no proof of mailing assignment of benefits.”

A review of the record indicates that plaintiff established its prima facie entitlement to [*2]summary judgment by proof of submission of its claim, setting forth the fact and amount of the loss 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]). Plaintiff established submission of the claim by annexing defendant’s denial of claim form to its moving papers, which states that defendant received the claim (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Contrary to the determination of the court below, plaintiff was not required to establish the proof of mailing of its assignment of benefits form as part of its prima facie case inasmuch as plaintiff established that it submitted a proper NF-3 claim form containing a verification of treatment by attending physician which states that an assignment of benefits form was attached (see 11 NYCRR 65-3.11 [b] [2]), and said form was annexed to plaintiff’s moving papers. Since defendant did not allege any deficiency in the assignment of claim form in its denial, it waived any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). Defendant’s remaining contentions regarding plaintiff’s prima facie entitlement to summary judgment lack merit. The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant received plaintiff’s claim on March 8, 2004, which it timely denied on March 29, 2004, on the basis of a peer review finding a lack of medical necessity. Upon a review of the denial and affirmed peer review report annexed to defendant’s opposition papers, we find that they “fully and explicitly” set forth the reasons for the denial (see e.g. Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiff’s remaining contentions regarding the denial lack merit. Consequently, defendant raised a triable issue of fact and the court below properly denied plaintiff’s cross motion for summary judgment.

Furthermore, plaintiff failed to establish that defendant’s discovery demands were irrelevant, privileged or confidential (see CPLR 3101, 3103). Defendant has demonstrated its entitlement to discovery since it timely denied the claim based on the lack of medical necessity and it is not precluded from asserting said defense.

With respect to defendant’s demand for a bill of particulars, we note that the purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial; its purpose is not to furnish evidentiary material (see e.g. Napolitano v Polichetti, 23 AD3d 534 [2005]). The demand for a bill of particulars herein improperly contains numerous requests for evidentiary information. It is not the function of the court to prune or correct a palpably improper demand. Under the circumstances, defendant should be afforded the opportunity to serve an amended demand (see Fiorella v Fiorella, 132 AD2d 643 [1987]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 27, 2006