Midisland Med., PLLC v Allstate Ins. Co.
Annotate this CaseDecided on September 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-319 Q C.
Midisland Medical, PLLC a/a/o Robert Ned and Kaydian Fyfee, Appellant,
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A.
Lebedeff, J.), entered July 31, 2006. The order denied plaintiff's motion for summary judgment.
Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff summary judgment upon its claims seeking to recover the sums of $1,999.12, $532.20, and $1,786.18, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees thereon, and for all further proceedings on the remaining claim; 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 upon four claims. Defendant opposed the motion. The court denied plaintiff's motion, finding that triable issues of fact existed as to medical necessity. The instant appeal by plaintiff ensued.
Plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the claim forms, 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The affidavit of defendant's senior operations staff analyst was sufficient to establish that the NF-10 denial of claim forms pertaining to plaintiff's claims seeking the sums of $1,999.12 and $746.01 were timely mailed in accordance with defendant's standard office practice and procedure (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 [*2]Dists 2007]).
As to the claim seeking $1,999.12, defendant did not rebut plaintiff's prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant's opposing papers, does not set forth a factual basis and medical rationale sufficient to establish the defense of lack of medical necessity, inasmuch as the reviewer asserted that she had insufficient documentation and information (see A.B. Med. Servs. PLLC. v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]). Since defendant did not demonstrate that it sought to obtain such information by means of a verification request, defendant did not establish a triable issue of fact as to this claim (see id.; A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]). Consequently, plaintiff is entitled to summary judgment on its $1,999.12 claim.
With respect to the claim seeking $746.01, defendant rebutted plaintiff's prima facie showing because the affirmed peer review report upon which this claim was denied, and which is annexed to defendant's opposing papers, set forth a sufficient factual basis and medical rationale so as to raise a triable issue of fact regarding medical necessity (see A.B. Med. Servs. PLLC. v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [2007], supra). Contrary to plaintiff's contention, the fact that the reviewer stated in the report that the "documentation did not reflect that this claimant had failed office-based physical therapy," does not require the conclusion that the doctor considered the information insufficient to permit a medical necessity determination. Consequently, plaintiff is not entitled to summary judgment on its $746.01 claim.
With respect to the claims seeking the sums of $532.20 and $1,768.18, the affidavit of defendant's senior operations staff analyst is insufficient to show that defendant timely mailed its denials for said claims since the affiant does not address the mailing of these denials in his affidavit. Consequently, defendant is precluded from interposing its proffered defense of lack of medical necessity with respect to these two claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff is entitled to summary judgment on said claims.
In view of the foregoing, plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims seeking to recover the sums of $1,999.12, $532.20, and $1,786.18, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claim.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 03, 2008
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