February 14, 2006

PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U))

Headnote

The court considered the fact that plaintiff PDG Psychological P.C. was seeking to recover first-party no-fault benefits for health care services rendered to its assignor, Gloria Jones. Defendant Utica Mutual Insurance Company moved for summary judgment dismissing the complaint, while plaintiff cross-moved for summary judgment. The main issue decided was whether plaintiff was entitled to rely upon defendant's denial of claim forms to establish the dates of defendant's receipt of the claim forms, and whether defendant mailed the denial of claim forms to plaintiff within the prescribed 30-day claim determination period. The holding was that plaintiff established a prima facie entitlement to summary judgment, and since defendant failed to establish that it mailed the denial of claim forms to plaintiff within the prescribed 30-day claim determination period, it was precluded from raising its defenses and the court properly granted plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U))

PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U)) [*1]

PDG Psychological P.C. v Utica Mut. Ins. Co.

2006 NY Slip Op 50246(U) [11 Misc 3d 128(A)]

Decided on February 14, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-508 K C.

PDG Psychological P.C. a/a/o GLORIA JONES, Respondent,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered February 2, 2005. The order, insofar as appealed from, as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, plaintiff was entitled to rely upon defendant’s denial of claim forms which were annexed to defendant’s motion papers to establish the dates of defendant’s receipt of the claim forms (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. 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]). Since defendant failed to establish that it mailed the denial of claim forms to plaintiff within the [*2]prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]), it is precluded from raising its defenses with
exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As a result, the court properly granted plaintiff’s cross motion for summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 14, 2006