Atl. Radiology, P.C. v. Maya Assurance Co.

Full title: Atlantic Radiology, P.C. as Assignee of DANI SARENKATOUN, Respondent, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Mar 11, 2016

2016 N.Y. Slip Op. 50478 (N.Y. App. Term 2016)

2016 N.Y. Slip Op. 50316

36 N.Y.S.3d 46

Opinion

2013-1612 K C

03-11-2016

Atlantic Radiology, P.C. as Assignee of Dani Sarenkatoun, Respondent, - v. Maya Assurance Co., Appellant.

PESCE, P.J., ALIOTTA and ELLIOT, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 19, 2013. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 on the ground of lack of medical necessity. By order entered June 19, 2013, the Civil Court granted plaintiff's motion and denied defendant's cross motion.

Contrary to defendant's contention, the affidavit of defendant's claims adjuster was insufficient to establish that its denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Although the claims adjuster stated that, in May 2012, she had personally generated the denial of claim form and placed it in an envelope, affixed proper postage and placed the envelope in an outgoing mailbox, she also stated that she began working for defendant as a claims adjuster in July 2012. Consequently, her affidavit was of no probative value (see Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant thus failed to demonstrate that it was not precluded from interposing its defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur. Decision Date: March 11, 2016