February 11, 2004

A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U))

Headnote

The court considered a case where A.B. Medical Services PLLC and G.A. Physical Therapy P.C. (plaintiffs) were seeking recovery of motor vehicle no-fault benefits for medical expenses they claimed were incurred by their assignor, Smolyanskiy. The record showed that A.B. Medical Services was entitled to summary judgment on their claim for neurological testing administered to Smolyanskiy on April 24, 2000 because the insurance company, CNA Insurance, did not deny the claim within 30 days of receipt. However, summary judgment was not warranted for the remaining no-fault claims. The peer review reports relied upon by CNA Insurance in denying the remaining claims were considered a proper defense of lack of medical necessity, and set forth sufficient facts to raise a triable issue. Therefore, the court modified the order to grant plaintiff's motion for summary judgment on one claim, but denied summary judgment on the remaining claims.

Reported in New York Official Reports at A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U))

A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U)) [*1]

A.B. Med. Servs. v CNA Ins. Co.

2004 NY Slip Op 50061(U)

Decided on February 11, 2004

Appellate Term, First 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This opinion is uncorrected and will not be published in the Official Reports.

Decided on February 11, 2004

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
571135/02

A.B. MEDICAL SERVICES PLLC, G.A. PHYSICAL THERAPY P.C., a/s/o MIKHAIL SMOLYANSKIY, Plaintiff-Appellant,
against
CNA INSURANCE COMPANY, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, New York County, entered January 25, 2002 (Debra A. James, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered January 25, 2002 (Debra A. James, J.) modified to grant plaintiff’s motion for summary judgment on its no-fault insurance claim relating to the April 24, 2000 medical services rendered to its assignor, Smolyanskiy, and to remit the matter to Civil Court for the assessment of appropriate attorney’s fees and interest with respect thereto; as modified, order affirmed, without costs.

The action seeks recovery of motor vehicle no-fault benefits in the form of medical expenses allegedly incurred by plaintiff’s assignors. Plaintiff demonstrated entitlement to summary judgment on its claim for neurological testing administered to its assignor, Smolyanskiy, on April 24, 2000, since the record shows that defendant received plaintiff’s no-fault claim relating to those services no later than June 23, 2000, and did not deny the claim until [*2]July 31, 2000. Having failed to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8[c]) within 30 days of receipt, defendant waived any defenses relating to the adequacy of plaintiff’s claim forms, including the alleged absence of necessary signatures (see, Mount Sinai Hosp. v Figuerdov, 263 AD2d 11, 17 [1999]) or the medical necessity of the services rendered (see, Central Gen. Hosp. v Chubb Group, 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 306, lv denied 93 NY2d 809 [1999]).

Summary judgment is unwarranted, however, on the remaining no-fault claims alleged in the complaint. Contrary to plaintiff’s contention, the peer review reports relied upon by defendant in timely denying the remaining claims were a proper vehicle to assert the defense of lack of medical necessity (11 NYCRR 65-3.8[b][4]) and set forth sufficient facts to raise a triable issue with respect to that defense (see, S+M Supply, Inc. v Allstate Ins. Co., 2003 WL 21960336, decided July 9, 2003 [App Term, 2d Dept]).

This constitutes the decision and order of the court.