Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co.
Annotate this CaseDecided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-629 K C.
Eagle Surgical Supply, Inc. as Assignee of Stephen Brown, Appellant,
against
Unitrin Advantage Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret
A. Pui Yee Chan, J.), entered September 22, 2008. The order granted defendant's motion for
summary judgment dismissing the complaint.
ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court granted defendant's motion, and the instant appeal ensued.
The affidavit of an employee of Kemper Independence Insurance Company, submitted by
defendant, failed to provide allegations concerning defendant's standard
office practices and procedures designed to ensure that items are properly addressed and
mailed so as to establish that defendant had timely mailed its denial of claim form (see Top Choice Med., P.C. v New York
Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term,
2d, 11th & 13th Jud Dists 2009]; see
also New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006];
Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New
York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App
Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to demonstrate that its defense of
lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15
Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting
defendant's motion for summary judgment is reversed and defendant's motion is denied.
In light of our determination, we do not reach plaintiff's other contentions.
Steinhardt, J.P., Pesce and Rios, JJ., concur.
[*2]
Decision Date: July 07, 2010
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