A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(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 (Joseph Esposito, J.), entered May 26, 2005. The order granted plaintiff partial summary judgment in the principal sum of $4,671.57 and denied defendant’s cross motion for summary judgment dismissing the action.

Order affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]). In the instant case, since defendant admitted that it received the five claim forms at issue, the record establishes a prima facie showing of plaintiff’s entitlement to summary judgment (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff’s motion, and in support of its cross motion for summary judgment, defendant asserted that it timely denied plaintiff’s claim which sought to recover the sum of $1,968.36 based upon a sufficiently detailed affirmed peer review annexed to defendant’s denial of claim form. The affidavit submitted by defendant’s no-fault specialist was sufficient to [*2]establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). As a result, both plaintiff’s motion and defendant’s cross motion for summary judgment upon this claim were properly denied.

However, defendant’s assertion that the plaintiff’s motion for summary judgment upon its claims for $390.85, $2,290, $205.77, and $1,784.95 should have also been
denied lacks merit. The affidavit executed by defendant’s no-fault specialist was insufficient to prove actual mailing of the verification requests or to create a presumption of mailing (see 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]). In light of defendant’s failure to establish the mailing of its verification requests, defendant did not establish that the 30-day claim determination period was tolled. As a result, defendant was precluded from raising most defenses to the claims for $1,784.95, $205.77, $2,290 and $390.85, with exceptions not relevant herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]). Consequently, the court properly granted plaintiff partial summary judgment upon these claims.

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

Golia, J., concurs in a separate memorandum. [*3]

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I note that if defendant’s claim manager had expanded his affidavit by stating that requests for verifications follow the same mailing procedures as denial of claim forms, then it would have been sufficient, at least to me, to establish a timely mailing of the verification demands.
Decision Date: August 15, 2006