Alfa Med. Supplies v Utica Mut. Ins. Co.

[*1] Alfa Med. Supplies v Utica Mut. Ins. Co. 2012 NY Slip Op 51890(U) Decided on September 28, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1964 K C.

Alfa Medical Supplies as Assignee of JOSE CAYETANO and ARGENIS PLATA-GIL, Respondent,

against

Utica Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009, deemed from a judgment of the same court entered January 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 4, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $3,949.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff's motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in opposition to plaintiff's motion for summary judgment established that defendant had timely denied the claim for $2,199 for supplies provided to Jose Cayetano on the ground of lack of medical necessity (see St. Vincent's Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its opposition papers an affirmed peer review report which was sufficient to demonstrate that the branch of plaintiff's motion seeking summary judgment on its $2,199 claim should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

As to plaintiff's claim for $1,750 for supplies provided to Argenis Plata-Gil, the denial submitted by defendant in opposition to plaintiff's motion showed that defendant received the claim on January 29, 2007, but did not deny the claim until October 1, 2007, more than 30 days after the claim had been received (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Defendant failed to demonstrate proper tolling of this claim. Accordingly, defendant did not establish that its denial was timely and, thus, that it is not precluded from raising its proffered defenses as to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant's remaining contention lacks merit.

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff's motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff's motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: September 28, 2012