Quality Psychological Servs., P.C. v Mercury Ins. Group

[*1] Quality Psychological Servs., P.C. v Mercury Ins. Group 2010 NY Slip Op 50601(U) [27 Misc 3d 129(A)] Decided on April 2, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-641 K C.

Quality Psychological Services, P.C. as assignee of JEMS JEROME, Respondent,

against

Mercury Insurance Group, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 4, 2009. The order denied defendant's motion for summary judgment and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff's cross motion for summary judgment is denied; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment, finding that defendant had failed to demonstrate that the denial of claim form, which denied plaintiff's claim on the ground of lack of medical necessity, had been timely mailed. The instant appeal by defendant ensued.

Contrary to the finding of the Civil Court, the affidavit of defendant's claims representative sufficiently established the timely mailing of the denial of claim form since the affidavit contained a detailed description, based on the affiant's personal knowledge, of defendant's standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The papers submitted in support of defendant's motion included a sworn peer review report by defendant's psychologist, which set forth a factual basis and medical rationale for his opinion that there was a lack of medical necessity for the psychological services at issue (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). [*2]In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and the burden shifted to plaintiff to raise a triable issue of fact regarding medical necessity.

In opposition to defendant's motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff's assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see A.B. Med. Servs., PLLC, 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U]). In view of the existence of a triable issue of fact, defendant's motion for summary judgment was properly denied and plaintiff's cross motion should have been denied. The order is modified accordingly.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 02, 2010