Neomy Med., P.C. v Auto One Ins. Co.

[*1] Neomy Med., P.C. v Auto One Ins. Co. 2010 NY Slip Op 51727(U) [29 Misc 3d 127(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1143 K C.

Neomy Medical, P.C. as Assignee of Rob Perez, Respondent,

against

Auto One Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 6, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff's motion seeking summary judgment upon its claim form for the sum of $3,551.02.

ORDERED that the order, insofar as appealed from, is reversed without costs, and the branch of plaintiff's motion seeking summary judgment upon its claim form for the sum of $3,551.02 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment upon its
claim form for the sum of $3,551.02. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The Civil Court granted plaintiff's motion for summary judgment upon this claim form, and this appeal ensued.

Contrary to defendant's contention, the affidavit of plaintiff's medical billing supervisor was sufficient to establish that the documents annexed to plaintiff's moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Since defendant raises no other issue on appeal regarding plaintiff's establishment of its prima facie case, we do not otherwise pass on the propriety of the determination of the Civil Court with respect thereto.

The affidavits submitted by defendant's "mail and file manager" and its litigation examiner were sufficient to establish that defendant's denial of claim form, which had denied the [*2]claim at issue of the ground of lack of medical necessity, had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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]). Defendant also submitted a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor's conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is reversed and plaintiff's motion for summary judgment upon the claim form seeking to recover the sum of $3,551.02 is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010