Devonshire Surgical Facility v GEICO

[*1] Devonshire Surgical Facility v GEICO 2007 NY Slip Op 51308(U) [16 Misc 3d 130(A)] Decided on July 2, 2007 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Sofia Senquiz,No.570713/06 Plaintiffs-Respondents, - -

against

GEICO, Defendant-Appellant.

Defendant, as limited by the briefs, appeals from an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated November 30, 2005, which (1) denied its cross motion for summary judgment dismissing the complaint, and (2) granted plaintiff Carnegie Hill Orthopedic Services summary judgment in the principal sum of $16,166.05, and plaintiff Devonshire Surgical Facility partial summary judgment in the principal sum of $3,000.

Per Curiam.

Order (Anil C. Singh, J.), dated November 30, 2005, modified to deny plaintiff Devonshire Surgical Facility's motion for partial summary judgment, and as modified, affirmed without costs.

In this action to recover first-party no-fault benefits, defendant's documentary submissions suffice to raise issues of fact as to whether plaintiff Devonshire Surgical Facility (Devonshire) was in compliance with the applicable state licensing requirements (see 11 NYCRR 65-3.16 (a)(12); State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Accordingly, Devonshire's motion for partial summary judgment should have been denied.

Civil Court properly granted summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. (Carnegie). Defendant is precluded from asserting the defense of provider fraud based on fraudulent billing practices since it failed to timely deny Carnegie's claims within the 30-day prescribed statutory period (see 11 NYCRR 65-3.8[c]; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]). Defendant's challenge to the sufficiency of Carnegie's prima facie case is unavailing inasmuch as defendant's documentary submissions established its receipt of Carnegie's claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 2, 2007