Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co.

[*1] Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. 2008 NY Slip Op 52174(U) [21 Misc 3d 133(A)] Decided on October 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 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
2007-1175 K C.

Avenue N Medical, P.C. a/a/o ANTOINETTE GRIGSBY, Appellant,

against

Travelers Property Casualty Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 18, 2007. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that there was an issue of fact as to medical necessity. The court below denied plaintiff's motion on the grounds that it failed to prove its prima facie entitlement to summary judgment inasmuch as plaintiff failed to prove that the claim forms were submitted to defendant and because the supporting affidavit did not establish that it was based upon the affiant's personal knowledge of plaintiff's standard office practices and procedures. The instant appeal by plaintiff ensued.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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]). In the instant case, any deficiency in plaintiff's moving papers regarding proof of mailing of the claim forms was cured by defendant's claim denial forms, and the affidavit of defendant's claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg [*2]Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In addition, a review of the record indicates that plaintiff's affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record establishes plaintiff's prima facie entitlement to summary judgment.

Contrary to plaintiff's contention, defendant, through the submission of the affidavit of its claims representative and the affirmed peer review, established that plaintiff's claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 2008