Delta Diagnostic Radiology, P.C. v Allstate Ins. Co.

[*1] Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. 2006 NY Slip Op 52034(U) [13 Misc 3d 135(A)] Decided on October 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-1831 N C.

Delta Diagnostic Radiology, P.C. a/a/o Maria Lewis, Appellant,

against

Allstate Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Sondra K. Pardes, J.), dated August 30, 2005. The order denied plaintiff's motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment 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 medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by
proof that it submitted the claims, setting forth the fact and the amounts 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Annexed to plaintiff's moving papers was defendant's explanation of benefits form which indicated the date on which the claim was received, thereby adequately establishing that plaintiff sent, and that defendant received, the claim (see Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; Capio [*2]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]). Thus, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 9th & 10th Jud Dists]).

Because defendant failed to establish that it mailed a timely denial of claim form to plaintiff (see 11 NYCRR 65-3.8 [c]), it is precluded from raising the proffered defense of lack of medical necessity (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U], supra). As a result, plaintiff's motion for summary judgment should have been granted. Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006