Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co.

[*1] Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. 2008 NY Slip Op 51538(U) [20 Misc 3d 137(A)] Decided on July 10, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-763 K C.

Eagle Surgical Supply, Inc., a/a/o JOEY EDWARDS, Respondent,

against

Progressive Casualty Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 26, 2007. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

Order, insofar as appealed from, modified by providing that defendant's cross motion for summary judgment is granted to the extent of dismissing the complaint insofar as it sought to recover upon plaintiff's claim seeking the sum of $925.75; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary
judgment dismissing the complaint on the ground of lack of medical necessity. The court denied both plaintiff's motion and defendant's cross motion, holding that the affidavits in support of the motion and cross motion were insufficient to establish either party's entitlement to summary judgment. Defendant appeals from the order insofar as it denied its cross motion.

Defendant established that it timely mailed the denial of claim forms at issue, which denied plaintiff's claims based upon either a peer review or an independent medical examination, pursuant to its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since the affirmed independent medical examination report submitted [*2]by defendant in support of its cross motion established prima facie that the supplies provided by plaintiff for which plaintiff sought to recover the sum of $925.75 were not medically necessary and plaintiff did not present any evidence refuting defendant's prima facie showing, the court should have granted defendant's cross motion for summary judgment dismissing the complaint insofar as it sought to recover upon said claim (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant's cross motion did not establish that the supplies for which plaintiff sought to recover on the claim seeking the sum of $235.63 were medically unnecessary, defendant was not entitled to summary judgment dismissing said claim.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008