Complete Radiology, P.C. v Progressive Ins. Co.

[*1] Complete Radiology, P.C. v Progressive Ins. Co. 2012 NY Slip Op 52079(U) Decided on October 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2939 Q C.

Complete Radiology, P.C. as Assignee of BELLA FINKELSHTEYN, Appellant,October 25, 2012

against

Progressive Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 21, 2010. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and found that defendant had issued timely denials of the claims in question.

ORDERED that the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied its motion for summary judgment and found that defendant had issued timely denials of the claims in question.

The proof submitted by defendant in opposition to plaintiff's motion was sufficient to establish a standard office practice and procedure designed to ensure that defendant's denials had been properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 [*2]Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and we find that defendant established that it had timely denied, on the ground of lack of medical necessity, the claim for $912 for services rendered on November 16, 2007. However, as to the claim for $879.73 for services rendered on October 30, 2007, we find that there is an issue of fact as to whether this claim was timely denied, as there is a significant discrepancy between the date the bill had been sent, as claimed by plaintiff, and the date the bill had been received, as claimed by defendant. Defendant also submitted two affirmed peer review reports, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for all of the services at issue, and which sufficiently rebutted the letter of medical necessity submitted by plaintiff, thereby creating an issue of fact. In view of the foregoing, plaintiff's motion for summary judgment was properly denied, and we vacate the Civil Court's finding that the claim for $879.73 was timely denied.

Accordingly, the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated, and the order, insofar as appealed from, is otherwise affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: October 25, 2012