Opinion
2005-1190 KC.
Decided July 19, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 12, 2005. The order, insofar as appealed from, granted plaintiff's motion for summary judgment to the extent of awarding plaintiff partial summary judgment upon its claim for $1,546.20 and denied defendant's cross motion for summary judgment.
Order, insofar as appealed from, modified by providing that, upon searching the record, plaintiff's motion for summary judgment is granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ
In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of any of the appended claim forms to defendant, the deficiency in plaintiff's moving papers concerning proof of its submission of the claims was cured by defendant's NF-10 denial of claim forms which adequately established that plaintiff sent, and that defendant received, said claim forms ( see Careplus Med. Supply Inc. v. State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v. Prudential Prop. Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d 11th Jud Dists 2005]).
Although defendant's submissions were sufficient to establish that defendant mailed, within the 30-day claim determination period, its NF-10 forms ( see D.A.V. Chiropractic P.C. v. American Tr. Ins. Co., 7 Misc 3d 133 [A], 2005 NY Slip Op 50609[U] [App Term, 2d 11th Jud Dists]; cf. Gribenko v. Allstate Ins. Co., 10 Misc 3d 139 [A], 2005 NY Slip Op 52201[U] [App Term, 2d 11th Jud Dists]; Contemp. Med. Diag. Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc 3d 137 [A], 2005 NY Slip Op 50254[U] [App Term, 2d 11th Jud Dists]), plaintiff was nevertheless entitled to summary judgment upon said claims. Defendant's denial of claim forms and the accompanying explanation of benefit forms merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denial of claims were otherwise devoid of any factual basis for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claims ( see A.B. Med. Servs. PLLC v. Liberty Mut. Ins. Co., 10 Misc 3d 128 [A], 2005 NY Slip Op 51902[U] [App Term, 2d 11th Jud Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U], supra). As a result, upon searching the record, we find that plaintiff is entitled to summary judgment on both of its claims and grant plaintiff's motion for summary judgment in its entirety. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
In this regard, I note my dissent in A.B. Med. Servs. PLLC v. Liberty Mut. Ins. Co. ( 10 Misc 3d 128 [A], 2005 NY Slip Op 51902[U] [App Term, 2d 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:
"If the specific reason for a denial of a no-fault claim . . . is a . . . peer review report . . . the insurer shall release a copy of that report . . . upon the written request of any of these parties." (emphasis added)
To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.