D.A.V. Chiropractic P.C. v American Tr. Ins. Co.

[*1] D.A.V. Chiropractic P.C. v American Tr. Ins. Co. 2005 NYSlipOp 50609(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-595 K C NO. 2004-595 K C

D.A.V. Chiropractic P.C. DANIEL KIM'S ACUPUNCTURE P.C. Assignees of Paulette Ford, Pamela Borden, Latoya Jones, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on February 17, 2004, as denied the motion for summary judgment by plaintiff D.A.V. Chiropractic P.C., as assignee of Latoya Jones, seeking the sum of $2,712.08.

Order, insofar as appealed from by plaintiff D.A.V. Chiropractic P.C., affirmed without costs.

Appeal, insofar as taken by plaintiff Daniel Kim's Acupuncture P.C., dismissed.

In this action to recover assigned first-party no-fault benefits, plaintiff D.A.V. Chiropractic P.C., established a prima facie entitlement to summary judgment in the sum of $2,712.08 for medical services rendered to its assignor, Latoya Jones, by proof that it submitted claims, 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In opposition to plaintiff's motion and [*2]in support of its cross motion for summary judgment, defendant argued that the claims were properly denied based on the assignor's failure to attend independent medical examinations (IMEs).

Where "an insurer timely asserts in its claim denial form an injured person's failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff's motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion" (Stephen Fogel Psychological, P.C. v
Progressive Cas. Ins. Co., ___Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d &
11th Jud Dists]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed that defendant issued timely denials based on the nonattendance of plaintiff's assignors at the pre-claim IMEs scheduled by defendant. Defendant's proof of mailing, consisting of the affidavit of the operations manager for Independent Physical Exam Referrals, which schedules IMEs for defendant, and the affidavit of defendant's claims representative, was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., Misc 3d , 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to plaintiff's claim forms, and raised a triable issue of fact as to the medical necessity of the services rendered plaintiff's assignors (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., Misc 3d , 2004 NY Slip Op 24527[U], supra). Inasmuch as plaintiff neither offered a valid excuse for its assignors' nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue as to medical necessity was raised. Therefore, the court properly denied plaintiff's motion for summary judgment as well as defendant's cross motion for summary judgment.

Inasmuch as no issue is raised by the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Patterson, J.P. and Rios, J. concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.

Golia, J., concurs in part and dissents in part and votes to modify the order in the following memorandum:

Although I agree with the findings of my colleagues that defendant's proof of mailing IME scheduling letters demonstrated that defendant, in conjunction with Independent Physical Exam Referrals, adhered to established business practices of proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that plaintiff failed to come forward with an acceptable excuse for its [*3]
assignors' nonattendance, it is my opinion that plaintiff's failure to have done so warrants the granting of defendant's cross motion for summary judgment and the substantive sanction of dismissal, for the reasons set forth in my dissent in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. ( Misc 3d , 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: April 22, 2005