NJ/NY Pain Mgt. v Allstate Ins. Co.

[*1] NJ/NY Pain Mgt. v Allstate Ins. Co. 2014 NY Slip Op 51569(U) Decided on November 3, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570565/14

NJ/NY Pain Management and Neal Goldsmith, D.C. a/a/o Christine Montanez, Plaintiffs-Respondents,

against

Allstate Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Ann E. O'Shea, J.), dated October 17, 2011, as granted plaintiffs' cross motion for summary judgment on the complaint.

Per Curiam.

Order (Ann E. O'Shea, J.), dated October 17, 2011, affirmed, with $10 costs.

Plaintiffs-providers established prima facie their entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by defendant-insurer and that payment of the no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8 [a][1]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]).

In opposition, defendant failed to raise a triable issue. Although defendant showed that it timely denied the claim on the ground of medical necessity, it failed to submit the IME report upon which its denial was based or any other evidentiary proof to support its defense of medical necessity (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Mollins v Allstate Ins. Co., 20 Misc 3d 141[A], 2008 NY Slip Op 51616[U][App Term, 1st Dept 2008]; cf. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]). In the absence of "evidentiary facts" showing that a "bona fide" issue exists (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1979]) as to the medical necessity of the services here at issue, plaintiff's cross motion for summary judgment was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 03, 2014