Psychological Practice, P.C. v Kemper Auto & Home Ins. Co. (2006 NY Slip Op 51289(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 (Loren Baily-Schiffman, J.), entered April 21, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was 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]). The burden then shifted to defendant to establish a triable issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment dismissing the complaint, defendant alleged that it timely mailed plaintiff an NF-10 claim denial form, which stated, as the sole defense to the claim, that the medical services provided were not medically necessary, as demonstrated by an “attached” peer review report (see generally Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). The defendant proved that it mailed the denial form via an affidavit [*2]from a person with personal knowledge of the facts, alleging the form’s actual mailing (Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76, 77 [App Term, 2d & 11th Jud Dists 2005]; see Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists] [affidavit must allege either personal knowledge of the denial form’s mailing or a description of “the standard operating procedures (defendant) uses to ensure that its denial was mailed”], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also New York and Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Defendant also proved that the peer review report was annexed to its denial form. As the report asserted sufficient facts and a medical rationale based thereon to establish the defense of lack of medical necessity, a trial is required on the issue (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]). Accordingly, both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment should have been denied.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
PSYCHOLOGICAL PRACTICE, P.C.
A/A/O ALLEN SHANNON,

Respondent,

-against-
KEMPER AUTO & HOME INSURANCE COMPANY,

Appellant.

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: July 3, 2006