Opinion
2005-1155 QC.
Decided July 17, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered March 7, 2005. The order granted defendant's motion, inter alia, to compel discovery and denied plaintiff's cross motion for summary judgment.
Appeal from so much of the order as granted defendant's motion, inter alia, to compel discovery dismissed.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Order, insofar as reviewed, modified by providing that plaintiff's cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the sum of $3,935.24, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees thereon and for all further proceedings on the remaining $687 claim; as so modified, affirmed without costs.
Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After defendant moved, inter alia, to compel plaintiff to comply with defendant's discovery demands, plaintiff cross-moved for summary judgment upon its claims for $687, $458, $1,786.18, $2,181.30, and $583.16. The denial of claim forms annexed to the parties' motion papers indicated that defendant made partial payment to plaintiff in response to the claims which originally sought the sums of $1,786.18, $2,181.30, and $583.16. By order entered March 7, 2005, the court below denied plaintiff's cross motion for summary judgment and granted defendant's motion to compel discovery on default since plaintiff failed to submit written opposition to defendant's motion to compel discovery. Accordingly, the appeal by plaintiff, the defaulting party, from so much of the order as granted defendant's motion on default must be dismissed ( see CPLR 5511; Coneys v. Johnson Controls, Inc., 11 AD3d 576; see also Marino v. Termini, 4 AD3d 342; Adamson v. Evans, 283 AD2d 527).
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 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]).
Plaintiff's cross motion for summary judgment upon its claim for $687 was properly denied because the submissions by the parties established that this claim was denied on the ground that the maximum allowable benefits therefor under the policy were already paid. As such there is an issue of fact as to whether the coverage limits applicable to the medical services rendered by plaintiff were previously exhausted ( see New York Presbyt. Hosp. v. Allstate Ins. Co., 12 AD3d 579; Presbyterian Hosp. in City of N.Y. v. General Acc. Ins. Co. of Am., 229 AD2d 479).
To the extent the denial of claim forms annexed to the parties' motion papers established that defendant failed to pay the sum of $3,935.24 upon the remaining claims, plaintiff was entitled to summary judgment for said amount since this court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense ( 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). In the instant case, defendant's denial of claim forms with respect to said claims, 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 denials of claims were otherwise devoid of any factual basis for the denials, 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], supra; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claims.
Therefore, plaintiff's cross motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $3,935.24. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on said amount pursuant to Insurance Law § 5106 and the regulations promulgated thereunder and for all further proceedings on the remaining $687 claim.
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.