Delta Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52370(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 (Gerald Dunbar, J.), entered May 2, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and
the amount of the loss 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]). Herein, plaintiff established submission of its claim by annexing defendant’s denial of claim form, dated July 25, 2003, to its moving papers which states that defendant received said claim on June 30, 2003 (see e.g. Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists]). Plaintiff asserts that defendant’s denial of claim form was insufficient in that it did not explicitly set forth the reason for the denial.

Defendant denied plaintiff’s claim on the basis of a peer review finding a lack of medical [*2]necessity. Upon a review of the denial and affirmed peer review report annexed to defendant’s opposition papers, we find that defendant “fully and explicitly” set forth the reasons for the denial (see e.g. Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U], supra; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). Plaintiff’s remaining contentions regarding the denial lack merit.

Accordingly, we find that defendant raised a triable issue of fact and that the court below properly denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
DELTA DIAGNOSTIC RADIOLOGY, P.C.
A/A/O AURELIO RONDON,
Appellant,

-against-

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Respondent. [*3]

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

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to 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.
Decision Date: December 8, 2006