April 12, 2019

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))

Headnote

The court considered the denial of claim forms for medical services provided from March 1, 2010 through September 22, 2010, which had been denied on the ground of lack of medical necessity. The defendant moved for summary judgment dismissing the complaint. The main issue decided was whether the proof submitted by the defendant was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed. The court held that the proof submitted by the defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed. The order, insofar as appealed from, granting the branches of defendant's motion seeking summary judgment dismissing seven claims for services provided from March 1, 2010 through September 22, 2010, which had been denied on the ground of lack of medical necessity, was affirmed.

Reported in New York Official Reports at Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U)) [*1]

Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co.

2019 NY Slip Op 50572(U) [63 Misc 3d 140(A)]

Decided on April 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2016-2884 K C

Success Rehab P.T., P.C., as Assignee of Carlos Ponce, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 10, 2016. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon seven claims for services provided from March 1, 2010 through September 22, 2010.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned, first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court entered August 10, 2016 as granted the branches of defendant’s motion seeking summary judgment dismissing seven claims for services provided from March 1, 2010 through September 22, 2010, which claims had been denied on the ground of lack of medical necessity.

Contrary to plaintiff’s assertion, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d [*2]1123 [2008]). In support of its motion, defendant proffered an affirmed report by the doctor who had performed an independent medical examination, which report set forth a factual basis and medical rationale for the doctor’s determination that the assignor’s injuries had resolved and that there was no medical necessity for the rendered services. Defendant’s prima facie showing was not rebutted by plaintiff. Plaintiff’s remaining arguments were improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and, in any event, lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 12, 2019