A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. 2005 NYSlipOp 50605(U) Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-403 K C

A.B. Medical Services PLLC, Respondent, and D.A.V. Chiropractic PC and DANIEL KIM'S ACUPUNCTURE PC a/a/o SVETLANA VASILENKO, Plaintiffs,

against

NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Appeal by defendant from so much of an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered January 30, 2004, as granted plaintiff A.B. Medical Services PLLC's motion for partial summary judgment.

Order insofar as appealed from unanimously reversed without costs and motion by plaintiff A.B. Medical Services PLLC for partial summary judgment denied.

Plaintiff A.B. Medical Services PLLC established its prima facie entitlement to partial summary judgment by its evidentiary proof that it submitted statutory claim forms 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App [*2]Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to create a triable issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant based its denial on a peer review report's conclusion that the tests were medically unnecessary. While a peer review report need not, in the first instance, be supplied with a claim denial (see 11 NYCRR 65.15 [g] [2] [iv], now 11 NYCRR 65-3.8 [b] [4] [affording a claimant the right to demand copies of medical reports from the insurer]), to preserve the defense of lack of medical necessity, the denial must assert, with the requisite evidentiary specificity, the necessary facts and medical rationale to establish such defense (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), thereby satisfying the NF-10 form's requirement that the basis of any denial be "fully and explicitly" set forth (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2004]). In our view, the peer review report submitted in admissible form in opposition to plaintiff's motion sufficed to assert a triable issue of fact as to the treatment's medical necessity (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra).
Decision Date: April 22, 2005