Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co.

[*1] Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co. 2006 NY Slip Op 51740(U) [13 Misc 3d 128(A)] Decided on September 14, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-620 Q C.

Triboro Chiropractic and Acupuncture P.L.L.C a/a/o Marie Valmir, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered on March 3, 2005. The order, insofar as appeal from as limited by plaintiff's brief, denied plaintiff's motion for summary judgment seeking to recover the sum of $1,856.42.

Order, insofar as appealed from, reversed without costs, plaintiff's motion for summary judgment in the sum of $1,856.42 granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment, which, on appeal, plaintiff has limited to the sum of $1,856.42 (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]). In opposition, defendant argued that it properly denied the claim for $731.04 because the fees were not in accordance with the Workers' Compensation fee schedules due to the fact that the treatment rendered constituted "concurrent care." Defendant further argued that the remaining claims, which totaled $1,125.38, were properly denied based upon the assignor's failure to attend independent medical examinations (IMEs).

Plaintiff was entitled to summary judgment upon the $731.04 claim as defendant failed to proffer sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact pertaining to this claim (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). With respect to the claims which totaled $1,125.38, 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 [*2]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 [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 defendant timely denied claims based on the nonattendance of plaintiff's assignor at the pre-claim IMEs, defendant failed to submit proof in admissible form of actual mailing of the letters requesting IMEs (see e.g. Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]) and defendant did not create a presumption of mailing by submission of an affidavit describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the assignor's failure to attend the pre-claim IMEs did not raise an issue of fact warranting the denial of plaintiff's motion for summary judgment (see Ocean Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, summary judgment is granted in favor of plaintiff in the sum of $1,856.42, 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.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 14, 2006