S&M Supply Inc. v Peerless Ins. Co. (2004 NY Slip Op 51683(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered July 23, 2003, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary
judgment is denied, plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,243.43 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees on that claim, and for all further proceedings on plaintiff’s remaining claim; as so modified, affirmed without costs.

Plaintiff’s claim in the amount of $1,243.43 was not denied until more than
30 days after it was submitted (see 11 NYCRR 65-3.8 [a], [c]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]), defendant insurer was precluded from raising most defenses. Inasmuch as plaintiff established a prima facie case by the submission of a complete proof of claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue, it was entitled to summary judgment on the claim (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]).

Neither party is entitled to summary judgment on the claim in the sum of $1,196.21. On [*2]April 22, 2002, defendant timely denied this claim, which had been received on April 9, 2002, on the ground that plaintiff’s assignor failed to appear for a chiropractic examination on February 20, 2002 and for an acupuncture examination on February 21, 2002.

An insurer has a right to an IME following an oral or written notice of claim
and prior to the insurer’s receipt of the statutory claim forms or their functional equivalent (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ______ [decided herewith]). Where, as here, an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, or in support of its own motion for summary judgment, the presumption of medical necessity which otherwise attaches to the claim forms is prima facie rebutted, and raises a triable issue as to the medical necessity of the health benefits provided (Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _________ [decided herewith]; Millennium Med. Diagnostics v Liberty Mut. Ins. Co., 2001 NY Slip Op 40654[U] [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388). While a plaintiff may successfully oppose a defendant’s summary judgment motion and avoid the negation of the presumption of medical necessity by establishing in its opposition papers that its assignor’s failure to attend the IME was excusable or that the request was unreasonable in light of all the surrounding circumstances existing at the time of the request, in the instant case plaintiff failed to establish either.

Since it was uncontroverted that the eligible injured person failed to comply
with a reasonable request for a pre-claim-form IME and plaintiff failed to make a prime facie showing of medical necessity, its motion for summary judgment was properly denied. Moreover, defendant’s cross motion for summary judgment should likewise have been denied inasmuch as questions of fact exist, including whether the benefits provided were medically necessary (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]).

Aronin, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order in the following
memorandum:

For the reasons stated in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op ________ [decided herewith]), I would affirm the order of the court below.
Decision Date: December 22, 2004