South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Farm Family Cas. Ins. Co.

[*1] South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Farm Family Cas. Ins. Co. 2015 NY Slip Op 51211(U) Decided on August 5, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-23 Q C

South Nassau Orthopedic Surgery & Sports Medicine, P.C. as Assignee of PETER PAPADIONISOPOULOS, Respondent, August 5, 2015

against

Farm Family Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered June 18, 2012. The order, insofar as appealed from, denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought reimbursement for services rendered between December 2008 and February 2009 and granted the branches of plaintiff's cross motion seeking summary judgment on that potion of the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. In an order entered June 18, 2012, insofar as appealed from, the Civil Court denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought reimbursement for services rendered between December 2008 and February 2009 and granted the branches of plaintiff's cross motion seeking summary judgment on that portion of the complaint.

Contrary to defendant's contention, the affidavit submitted by plaintiff was sufficient to establish plaintiff's prima facie entitlement to summary judgment with respect to the services at issue (see Insurance Law § 5106 [a]; New Way Med. Supply Corp. v MVAIC, 46 Misc 3d 129[A], 2014 NY Slip Op 51805[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Defendant failed to demonstrate that its May 1, 2009 denials were timely with respect to the bills at issue, all of which had been received by defendant between January 7, 2009 and March 12, 2009. Plaintiff's assignor appeared for an examination under oath (EUO) on March 3, 2009, and no other verification remained outstanding. Consequently, defendant was required to deny each of the bills at issue by the later of the following two dates: 30 days from the date of receipt of the bill or 30 days from March 3, 2009 (see 11 NYCRR 65-3.8 [a] [1] ["No-Fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested . . . . In the case of an examination under oath . . . , the verification is deemed to have been received by the insurer on the day the examination was performed."]), which it failed to do. In view of the foregoing, the [*2]branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought reimbursement for services rendered between December 2008 and February 2009 were properly denied, and the branches of plaintiff's cross motion seeking summary judgment on that portion of the complaint were properly granted.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 05, 2015