April 13, 2017

Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U))

Headnote

The relevant facts the court considered were that Exultant Medical Diagnostics, P.C. was seeking to recover first-party no-fault benefits as the assignee of two individuals, Devon Crawford and Shatara Griffin. American Commerce Insurance Company had denied the claim on the ground of lack of medical necessity, but failed to establish that the denial of claim forms had been properly and timely mailed. The main issues decided in this case were whether the denial of claim forms had been properly and timely mailed, and whether the defendant had established its prima facie entitlement to summary judgment. The holding of the court was that the order denying the defendant's motion for summary judgment was affirmed, as the defendant had failed to establish its entitlement to summary judgment.

Reported in New York Official Reports at Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U))

Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U)) [*1]

Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co.

2017 NY Slip Op 50496(U) [55 Misc 3d 136(A)]

Decided on April 13, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ.
2015-2401 N C

Exultant Medical Diagnostics, P.C., as Assignee of Devon Crawford and Shatara Griffin, Respondent,
against
American Commerce Insurance Company, Appellant.

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 17, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.

Upon a review of the record, we find that defendant failed to establish that the denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been properly and timely mailed. The affidavit of defendant’s claims adjuster did not state how defendant obtains the mailing address for the denial of claim forms, so as to ensure that the address is correct, or that the envelopes are affixed with postage (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Contemporary Acupuncture, P.C. v Allstate Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Consequently, defendant failed to establish its prima facie entitlement to summary judgment.

Accordingly, the order is affirmed.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: April 13, 2017