AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52256(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, Kings County (Eileen Nadelson, J.), entered September 9, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on January 10, 2006. The judgment, entered pursuant to the September 9, 2005 order granting plaintiff partial summary judgment, awarded plaintiff the sum of $2,580.09, including interest, costs and attorney’s fees.

Judgment affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission
of statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is 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, with respect to the appended claim forms for the amounts of $614.33, $300, $400 and $400, plaintiff established that it sent and that defendant received same by annexing to its moving papers defendant’s denial of claim forms corresponding thereto (see 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 [*2]Dists]). Accordingly, plaintiff established its prima facie entitlement to summary judgment as to the aforementioned claims and the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s assertion that it timely denied the claims based on the assignor’s failure to appear for scheduled independent medical examinations (IMEs) and nonconformity with the Workers’ Compensation fee schedule is lacking in merit. While
a post-claim IME verification request may toll the 30-day statutory period within which an insurer has to pay or deny a claim (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]), the affidavit of defendant’s no-fault specialist was insufficient to establish the mailing of the IME request letters since she neither alleged that she had personal knowledge that said request letters were mailed nor set forth a sufficiently detailed description of defendant’s standard office mailing practice or procedure so as to give rise to the presumption of mailing (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). As a result, defendant failed to establish that the 30-day statutory time period within which it had to pay or deny plaintiff’s claims was tolled. Since defendant failed to establish that it timely denied plaintiff’s claims, it is precluded from asserting its defenses of lack of medical necessity and that the fees charged by plaintiff were excessive (see Presbyterian Hosp. in Cityof N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Therefore, the lower court properly granted plaintiff’s motion to the extent of awarding it partial summary judgment as to its claims in the sums of $614.33, $300, $400 and $400.

Pesce, P.J. Weston Patterson and Belen, JJ., concur.
Decision Date: November 15, 2006