May 26, 2004
A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))
Headnote
Reported in New York Official Reports at A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))
| A.B. Med. Servs. v N.Y. Cent. Mut. Fire Ins. Co. |
| 2004 NY Slip Op 50507(U) |
| Decided on May 26, 2004 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-690 K C
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.
Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).
Judgment unanimously affirmed without costs.
Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.
A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).
We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004