July 7, 2010

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))

Headnote

The court considered a provider's action to recover assigned first-party no-fault benefits, with the defendant arguing that the equipment provided was not medically necessary. The Civil Court granted the defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant had timely mailed its denial of claim form, and the court found that the affidavit submitted by the defendant failed to establish that its standard office practices and procedures were designed to ensure timely mailing. As a result, the defendant failed to demonstrate that its defense of lack of medical necessity was not precluded. The holding of the case was that the order granting the defendant's motion for summary judgment was reversed and the defendant's motion was denied.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U))

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co. (2010 NY Slip Op 51183(U)) [*1]

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co.

2010 NY Slip Op 51183(U) [28 Misc 3d 127(A)]

Decided on July 7, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-629 K C.

Eagle Surgical Supply, Inc. as Assignee of Stephen Brown, Appellant,
against
Unitrin Advantage Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 22, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court granted defendant’s motion, and the instant appeal ensued.

The affidavit of an employee of Kemper Independence Insurance Company, submitted by defendant, failed to provide allegations concerning defendant’s standard
office practices and procedures designed to ensure that items are properly addressed and mailed so as to establish that defendant had timely mailed its denial of claim form (see Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting defendant’s motion for summary judgment is reversed and defendant’s motion is denied.

In light of our determination, we do not reach plaintiff’s other contentions.

Steinhardt, J.P., Pesce and Rios, JJ., concur. [*2]
Decision Date: July 07, 2010