Opinion
570073/06.
Decided September 20, 2006.
Defendant, as limited by its brief, appeals from so much of an order of the Civil Court, New York County (Peter H. Moulton, J.), dated July 16, 2004, as granted summary judgment in favor of plaintiff Response Medical Equipment in the principal sum of $7,741.80, and denied that branch of its cross motion which sought to dismiss "[p]laintiff's counsel's independent cause of action for attorney's fees."
Order (Peter H. Moulton, J.), dated July 16, 2004, modified to (1) vacate so much thereof as awarded plaintiff Response Medical Equipment judgment in the sum of $7,741.80, and (2) grant partial summary judgment in favor of plaintiff Response Medical Equipment only on its claims pertaining to assignor Natasha Cleary, in the sum of $871.96, and assignor Edwin Milanes, in the sum of $650, and (3) to dismiss the cause of action for attorney's fees insofar as pleaded independently on behalf of the named plaintiff "The Law Offices of Moshe D. Fuld," and as so modified, affirmed, without costs.
PRESENT: McKEON, J.P., McCOOE, SCHOENFELD, JJ.
Summary judgment in favor of plaintiff Response Medical Equipment (Response) on the claims of assignors Raven Applewhite, Neville Brown, Glenda Gordon, and Edwin Milanes was improperly granted since the request for summary judgment on these claims was first made in a reply affirmation, which may not be considered for the purpose of showing a prima facie entitlement to summary judgment ( see Batista v. Santiago, 25 AD3d 326). Summary judgment on these claims was also unwarranted since the affidavit of Response's principal did not state that he personally mailed the claims nor described the office mailing practice or procedures (see New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547).
While Response established a prima facie entitlement to partial summary judgment on the claims pertaining to assignors James Cartwright, Natasha Cleary, Edwin Milanes, Sharon Meyers and Pedro Rosa ( see Insurance law § 5106 [a] ; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742), defendant's submissions in opposition with respect to the claims for assignors James Cartwright, Sharon Meyers and Pedro Rosa were sufficient to raise issues of fact as to whether the 30-day period within which it was required to pay or deny the claims was extended by proper verification requests. Moreover, defendant supported its defense of lack of medical necessity asserted against the claims of assignors Cartwright and Meyers with sufficiently detailed peer reviews in admissible form. The claim of assignor Pedro Rosa was denied for failure to appear for six scheduled independent medical examinations (IMEs). Although defendant's affidavit was insufficient to establish the presumption of mailing of the IME requests, it sufficed to raise issues of fact with respect thereto ( see New York and Presbyt. Hosp. v. Allstate Ins. Co., supra).
However, inasmuch as it is undisputed that the $871.96 claim for assignor Natasha Cleary was not timely denied within 30 days after receipt thereof ( see 11 NYCRR 65-3.8[c]), defendant is precluded from asserting its defense of lack of medical necessity ( see Country-Wide Ins. Co. v. Zablozki, 257 AD2d 506, lv denied 93 NY2d 809). With respect to the $650 claim for assignor Edwin Milanes, defendant failed to support its defense of lack of medical necessity with the peer review upon which the denial was based, or any other competent proof in admissible form. Thus, Response is entitled to partial summary judgment on these two claims.
Finally, that branch of defendant's cross motion which sought to dismiss "[p]laintiff's counsel's independent cause of action for attorney's fees" should have been granted insofar as the second cause of action pleaded in the complaint seeks recovery of statutory attorney's fees on behalf of "The Law Offices of Moshe D. Fuld." While Response may be entitled to attorney's fees, no independent cause of action for attorney's fees exists in favor of its attorney.
This constitutes the decision and order of the court.
I concur.