Andrew Carothers, M.D., P.C. v New York Cent. Mut. Fire Ins. Co.
Decided on August 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-878 RI C.
Andrew Carothers, M.D., P.C. a/a/o Belkis Soledad and Kandlson Estephane, Respondent,
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Peter Paul Sweeney, J.), entered March 20, 2006. The order granted plaintiff's motion for summary judgment.
Order reversed without costs and plaintiff's motion for summary judgment denied.
In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts and the amounts of the losses 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 ; 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 opposition, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ). Since the denial of claim forms stated that the claims were denied based upon peer review reports and defendant's papers submitted in opposition to plaintiff's motion for summary judgment were sufficient to demonstrate the existence of an issue of fact with respect to defendant's defense of lack of medical necessity, plaintiff was not entitled to summary judgment (see New York Univ. Hosp. [*2]Rusk Inst. v Government Employees Ins. Co., 39 AD3d 832 ; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 ; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 ). Accordingly, plaintiff's motion for summary judgment should have been denied.
In light of the foregoing, we reach no other issue.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007