J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co.

[*1] J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. 2016 NY Slip Op 50033(U) Decided on January 8, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1152 Q C

J.C. Healing Touch Rehab, P.C. as Assignee of WILLIAM GINORIO, Appellant,

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied; 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, by order entered April 4, 2013, the Civil Court denied the branches of plaintiff's motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

Plaintiff's moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff's contention, plaintiff is not entitled to summary judgment upon the first and third through seventh causes of action. We note that even if plaintiff had made a prima facie showing of its entitlement to summary judgment upon the seventh cause of action, it would not be entitled to summary judgment thereon, as the conflicting medical expert opinions proffered by the parties demonstrated the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue.

In support of the branch of defendant's cross motion seeking summary judgment dismissing the first and third through sixth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests [*2]and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's first and third through sixth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from an employee of National Billing & Collections, Inc., which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: January 08, 2016