A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co.

[*1] A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co. 2005 NY Slip Op 50114(U) Decided on February 2, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-290 K C

A.B. MEDICAL SERVICES PLLC, Appellant, -and- D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Alfred Royston, Plaintiffs,

against

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiff A.B. Medical Services PLLC from an order of the Civil Court, Kings County (M. Solomon, J.), entered December 12, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, motion by plaintiff A.B. Medical Services PLLC for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

"A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law . . . " (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004] [citations omitted]). In the instant case, although defendant timely denied the subject claims submitted by A.B. Medical Services PLLC (A.B.), said denials were based upon a peer review which concluded that there was no medical necessity for the procedures performed, in that the reviewer lacked sufficient information upon which to make such a determination. [*2]However, the fact that the reviewer lacked sufficient information does not, in and of itself, demonstrate the existence of a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b]). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 [*3]
NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Therefore, A.B.'s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Decision Date: February 02, 2005