September 21, 2006

Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U))

Headnote

The relevant facts considered in this case were that Empire State Psychological Services, P.C. sought to recover first-party no-fault benefits for health care services rendered to their assignor, Samantha Williams, and the defendant, Travelers Insurance Company, denied these bills on the grounds of absence of medical necessity. The main issue decided was whether plaintiff had established the fact and the amount of the loss sustained and whether payment of no-fault benefits was overdue. The court held that plaintiff failed to make out a prima facie case as it did not establish the fact and the amount of the loss sustained by submitting prescribed statutory billing forms or its substantial equivalent, and thus, reversed the judgment, granted defendant's motion for judgment as a matter of law, and dismissed the complaint.

Reported in New York Official Reports at Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U))

Empire State Psychological Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51869(U)) [*1]

Empire State Psychological Servs., P.C. v Travelers Ins. Co.

2006 NY Slip Op 51869(U) [13 Misc 3d 131(A)]

Decided on September 21, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1064 Q C.

EMPIRE STATE PSYCHOLOGICAL SERVICES, P.C. a/a/o SAMANTHA WILLIAMS, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered August 10, 2004. The judgment, after a nonjury trial, and upon the denial of defendant’s motion for judgment as a matter of law pursuant to CPLR 4401, awarded plaintiff the principal sum of $1,061.63.

Judgment reversed without costs, defendant’s motion which was for judgment as a matter of law granted, and complaint dismissed.

In this action to recover first-party no-fault benefits for health care services rendered to plaintiff’s assignor, at the close of plaintiff’s case defendant moved pursuant to CPLR 4401 for judgment as a matter of law. The court reserved decision until after defendant presented its case, and then denied the motion, which defendant had renewed, and awarded judgment to plaintiff in the principal amount sought.

Whether considered solely on plaintiff’s proof or upon all the evidence presented, defendant’s motions should have been granted. Plaintiff rested its case without calling any witnesses. As its only proof, plaintiff offered into evidence, without objection, defendant’s [*2]response to a written interrogatory which established only that defendant received from plaintiff several bills on a given date, and that defendant timely denied these bills on the ground of the absence of medical necessity for the health care services provided. As a matter of law, plaintiff failed to establish the fact and the amount of the loss sustained and that payment of no-fault benefits was overdue by proof that it submitted to defendant “prescribed statutory billing forms” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2004]; see Amaze Med. Supply v Eagle Ins. Co., 2
Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]) or its substantial equivalent (11 NYCRR 65-3.5 [f]). Accordingly, plaintiff failed to make out a prima facie case.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 21, 2006