A.B. Med. Servs. PLLC v American Tr. Ins. Co.

[*1] A.B. Med. Servs. PLLC v American Tr. Ins. Co. 2005 NYSlipOp 51316(U) Decided on August 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1342 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C., DANIEL KIM'S ACUPUNCTURE P.C., a/a/o Vlad Khlevner and Shaul Sultan, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on July 14, 2004, as denied the motion for summary judgment by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. in the sum of $14,669.64.

Order insofar as appealed from unanimously reversed without costs, motion by plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

Appeal by plaintiff Daniel Kim's Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount of the losses 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]). Contrary to the determination of the court below, the defendant's denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiffs sent, and that defendant received, the claims (see Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Moreover, the lack of authentication of an assignor's signature, in and of itself, does not [*2]constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant's failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Diagnostic Rehab. Med. Servs. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

It is uncontroverted that defendant timely denied the claims. In opposition to plaintiffs' motion, defendant argued, inter alia, that the claims were properly denied on the ground that plaintiffs' assignors failed to attend independent medical examinations (IMEs) scheduled by A. Samenga & Associates at the request of defendant's claims representative. 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., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]; 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]).

While plaintiffs have effectively conceded receipt of the IME notices dated August 6, 2001 and August 7, 2001 addressed to the assignors' attorney, there was no competent proof of mailing to assignor Khlevner (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), and defendant has acknowledged that no notices were mailed to assignor Sultan. Under the circumstances, defendant's opposition papers are insufficient to rebut the presumption of medical necessity (see Careplus Med. Supply Inc. v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]).

Inasmuch as no issue is raised relating to the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]). [*3]

Accordingly, summary judgment is granted in favor of plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C., and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: August 17, 2005