W.H.O. Acupuncture, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52244(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 (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied the branches of plaintiff’s motion which sought summary judgment upon plaintiff’s claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from the denial of the branches of its motion for summary judgment which sought to
recover upon its claims in the amounts set forth in the claim forms dated July 9, 2003, July 22, 2003, August 6, 2003, August 22, 2003, and September 5, 2003. Plaintiff asserts that defendant’s denial of claim forms (NF-10) were defective because rather than fully and explicitly setting forth the basis for the denials, the NF-10s stated that plaintiff’s claims were denied based upon a peer review report, a copy of which accompanied the NF-10s. Where, as here, the insurer establishes that it provided a factually sufficient peer review report to plaintiff within the 30-day claim determination period, an NF-10 which states that the claim was denied based upon the peer review report provided to plaintiff is sufficient to preserve a defense of lack of medical necessity (see Psychological Practice, P.C. v Kemper Auto & Home Ins. Co., 12 Misc 3d 137[A], 2006 NY [*2]Slip Op 51289[U] [App Term, 2d & 11th Jud Dists]; Vista Surgical Supplies, Inc. v Metropolitan Prop. & Cas. Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51047[U] [App Term, 2d & 11th Jud Dists]; see also SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In view of the fact that defendant’s opposition to plaintiff’s summary judgment motion included an affidavit from the peer reviewer which incorporated the unsworn peer review report, plaintiff was not entitled to summary judgment upon its claims in the
amounts set forth in the aforesaid claim forms (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 08, 2006