Bronxborough Med., P.C. v New Hampshire Ins. Co.

[*1] Bronxborough Med., P.C. v New Hampshire Ins. Co. 2006 NY Slip Op 51354(U) [12 Misc 3d 141(A)] Decided on July 7, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-1599 Q C. NO. 2005-1599 Q C

Bronxborough Medical, P.C. a/a/o DIONDRE CARLISLE, Appellant,

against

New Hampshire Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 26, 2005. The order, insofar as appealed from, denied plaintiff's cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff's cross motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In denying plaintiff's cross motion for summary judgment, the court below referred to the allegedly defective NF-3 form which contains an unreadable marking in the provider's signature space, an allegedly defective assignment and an allegedly defective supporting affidavit by someone without personal knowledge of the facts. However, these deficiencies were waived because the defendant failed to timely seek verification of the assignment or the NF-3 form (A.B. [*2]Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff's cross motion for summary judgment, the defendant conceded that it had received plaintiff's claim form and indicated the date of receipt on its denial of claim form. This adequately established that plaintiff sent and defendant received said claim (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]). Defendant made the conclusory allegation, by one without personal knowledge of the facts, that it had sent several requests for independent medical examinations (IMEs) and that plaintiff's assignor failed to appear. Since defendant failed to describe the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to create a triable issue of fact (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, plaintiff's cross motion for summary judgment should have been granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 7, 2006