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

[*1] Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. 2010 NY Slip Op 52022(U) [29 Misc 3d 137(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-2023 K C.

Delta Diagnostic Radiology, P.C. as Assignee of NICOLA DIANA, Respondent,

against

Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 11, 2009, deemed from a judgment of the same court entered June 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 11, 2009, which, inter alia, granted the branches of plaintiff's motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,790.67.

ORDERED that the judgment is reversed, without costs, so much of the order entered May 11, 2009 as granted the branches of plaintiff's motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing said causes of action is vacated, the branches of plaintiff's motion seeking summary judgment upon the first and third causes of action are denied, and the branches of defendant's cross motion seeking summary judgment dismissing said causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from an order entered May 11, 2009 insofar as it granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's first and third causes of action and denied the branches of defendant's cross motion seeking summary judgment dismissing said causes of action. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding whether plaintiff established its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

The affidavit of defendant's claims representative established that defendant timely requested additional verification of the claim at issue in the third cause of action and that plaintiff failed to respond to defendant's initial and follow-up requests (see St. Vincent's Hosp. of [*2]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]). As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the third cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, the branch of defendant's cross motion seeking to dismiss the third cause of action should have been granted.

Defendant timely denied the claim at issue in the first cause of action on the ground of lack of medical necessity (St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In support of its cross motion, defendant also submitted an affirmed peer review report from defendant's chiropractor, which set forth a factual basis and medical rationale for the conclusion that the services rendered were not medically necessary. The chiropractor's peer review report was affirmed (cf. CPLR 2106) instead of being sworn to before a notary public. However, inasmuch as plaintiff did not submit papers in opposition to defendant's cross motion for summary judgment, plaintiff waived such defect by failing to object to it in the Civil Court (see Akamnonu v Rodriguez, 12 AD3d 187 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut the conclusion set forth in the peer review report, the branch of defendant's cross motion seeking to dismiss the first cause of action should have been granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010