V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 50304(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 (Diccia T. Pineda-Kirwan, J.), entered December 16, 2003. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

Plaintiff health care provider commenced the instant action to recover $10,811.67 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. The instant appeal involves the same accident and assignor that formed the basis of the appeal in GPM Chiropractic, P.C. v State Farm Mut. Ins. Co. (7 Misc 3d 135[A], 2005 NY Slip Op 50744[U] [App Term, 2d & 11th Jud Dists]). Upon our review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 135[A], 2005 NY Slip Op 50744[U], supra). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether [*2]there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

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

Golia, J., concurs in part and dissents in part in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
V.S. MEDICAL SERVICES, P.C.,
as assignee of RAFAEL RODRIGUES,

Respondent,

-against-
STATE FARM MUTUAL INSURANCE CO.,

Appellant.

Golia, J., concurs in part and dissents in part and votes to grant summary judgment to the defendant.

I concur with the majority in its finding that “the affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a ‘founded belief that the alleged injur[ies] do[] not arise out of an insured incident’…”

However, I would not have reached that issue. Although not specifically addressed in the majority decision, the “proof” submitted by the plaintiff in support of its claim was insufficient in that it did not include any “assignment of benefit” form. Therefore, the plaintiff lacks standing to prosecute this claim, and has not made a prima
facie showing of entitlement to summary judgment due to its failure to submit evidentiary proof that the prescribed statutory billing forms had been mailed and received (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Plaintiff has also failed to comply with 11 NYCRR 65.12 (e) which provides that “[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage” (see also Inwood Hill Med., P.C. v General Assurance Co., 10 Misc 3d 18 [App Term, 1st Dept 2005]).

Inasmuch as the plaintiff failed to submit a proper and complete set of documents in accordance with the prescribed statutory billing forms, it did not make out a prima facie entitlement to summary judgment. [*4]
Decision Date: February 27, 2006