Alfa Med. Supplies v Progressive Northeastern Ins. Co.

[*1] Alfa Med. Supplies v Progressive Northeastern Ins. Co. 2010 NY Slip Op 51733(U) [29 Misc 3d 128(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-1417 K C.

Alfa Medical Supplies, As Assignee of Angel Peralta, Respondent,

against

Progressive Northeastern Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 31, 2009. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, insofar as is relevant to this appeal, denied defendant's motion for summary judgment dismissing the complaint and found, pursuant to CPLR 3212 (g), that defendant's denial of claim form was timely. This appeal by defendant ensued.

It is undisputed that plaintiff's claim for $455 has been paid in full, including statutory interest and attorney's fees. Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted as to that claim.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant's denial of claim form, which had denied plaintiff's claim for $1,480 on the ground of lack of medical necessity, was 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 an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the supplies at issue. There is no merit to plaintiff's contention that the affirmed peer review report should not be considered by the court (see Urban Radiology, P.C. [*2]v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff failed to proffer an affidavit from a medical practitioner to rebut the conclusions set forth in the peer review report and, therefore, failed to raise a triable issue of fact. Accordingly, defendant's motion for summary judgment dismissing the complaint is granted as to this claim as well (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]).

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