Queensboro Med. Rehab, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51936(U))

Civil Court of the City of New York, Kings County

121948/2005

Genine D. Edwards, J.

In this action to recover No-Fault benefits, statutory interest and attorney’s fees, plaintiff makes a motion for summary judgment. Defendant cross-moves for the same relief on the ground that the services allegedly provided by the plaintiff were not medically necessary.

To establish a prima facie case of entitlement to No-Fault benefits the plaintiff must demonstrate that it provided defendant with a claim for services rendered, setting forth the facts and amount of the loss and that the claim was not paid nor denied nor was verification requested. Nyack Hospital v. Metropolitan Property & Casualty Insurance Company 16 AD3d 564 (2nd Dept. 2005); Mary Immaculate Hospital v. Allstate Insurance Company 5 AD3d 742 (2nd Dept. 2004); Careplus Medical Supply Inc. v. General Assurance Company 7 Misc 3d 126(A) (App. Term 9th & 10th Jud. Dists. 2005). If plaintiff’s burden is met then the defendant has the burden of proving that triable issues of fact exist. Montefiore Medical Center v. New York Central Mutual Fire Insurance Company 9 AD3d 354 (2nd Dept. 2004); Liberty Queens Medical, P.C. v. Liberty Mutual Insurance Company, 2002 NY Slip Op. 40420 (U) (App. Term 2nd & 11th Jud. Dists. 2002); A.B. Medical Services PLLC, DAV v. Allstate Insurance Company, 8 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2005). Upon such proof, the plaintiff is obligated to rebut such evidence or risk dismissal. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Insurance Company, 7 [*2]Misc 3d 822 (N.Y.C. Civ. Ct. Kings County 2005); Bedford Park Medical Practice P.C. v. American Transit Insurance Co., 8 Misc 3d 1025(A) (N.Y.C. Civ. Ct. Kings County 2005).

In the instant case, the plaintiff demonstrated its entitlement to no-fault benefits in the amounts of $129.28 and $182.86, via appending the defendant’s denial of claim forms to its motion. King’s Medical Supply Inc. v. Country-Wide Insurance Company, 5 Misc 3d 767 (N.Y.C. Civ. Ct. Kings County 2004); Capri Medical, P.C. v. New York Central Mutual Fire Insurance Company, 11 Misc 3d 1073(A) (N.Y.C. Civ. Ct. Kings County 2006); AT Medical P.C. v. Utica Mutual Insurance Company, 11 Misc 3d 142(A) (App. Term 2nd & 11th Jud. Dists. 2006); A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2004); Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 119 (2nd Dept. 2006). Also, plaintiff’s burden of proof for the claim in the amount of $297.12 was established since the defendant attached its denial of claim form, indicating that it received the claim, to its cross-motion. Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 126(A) (App. Term 2nd & 11th Jud. Dists. 2006); Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co., 12 Misc 3d 130(A) (App. Term 2nd & 11th Jud. Dists. 2006).

With respect to the claim for the amount of $129.28, it is clear and plaintiff agrees that payment was made, albeit late. The query is whether plaintiff is still entitled to attorney’s fees. According to Insurance Law §5106, the plaintiff is entitled to recover attorney’s fees when the claim was denied or overdue. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 (1997); Function Supply v. Progressive Ins. Co., 9 Misc 3d 1123(A) (N.Y.C. Civ. Ct. Queens County 2005).

Now we move to defendant’s cross-motion. It is clear that Kelly Andre’s affidavit established that all of the subject denials were timely served upon the plaintiff. With respect to the claims in the amounts: $297.17 and $182.86, the defendant denied the claims based upon lack of medical necessity. In support of this contention the defendant attached an admissible peer review report that set forth a competent physician opinion. Thus, the defendant sustained its burden of production of a material issue of fact for trial. Triboro Chiropractic and Acupuncture PLLC v. Electric Insurance Company, 2 Misc 3d 135(A) (App. Term 2nd & 11th Jud. Dists. 2004); Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A) (App. Term 9th & 10th Jud. Dists. 2006). However, upon review of the subject bills and the corresponding peer review report, this Court is not persuaded that the defendant is entitled to summary judgment. The presumption of medical necessity that attached to the claim forms has not been rebutted by the defendant’s peer review report. Bedford Park Medical Practice P.C., supra.

Accordingly it is hereby,

Ordered that plaintiff’s summary judgment motion is granted only as to the claim for attorney’s fees for the claim amount of $129.28. Judgment should be entered in favor of the

plaintiff in the amount of $60.00. It is further ordered that defendant’s cross-motion for summary judgment is denied. Issues of fact exist regarding the medical necessity of the claims in the amounts of $297.17 and $182.86.

This constitutes the decision and order of the Court.

Dated: October 12, 2006__________________________________

Genine D. Edwards, J.C.C.