Opinion
2005-398 KC.
Decided February 27, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 2, 2005. The order denied plaintiff's motion for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, 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; A.B. Med. Servs. PLLC v. Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d 11th Jud Dists 2004]). Defendant opposed the motion and submitted an affidavit from its no-fault supervisor wherein she stated that defendant denied the claim based on the nonattendance of plaintiff's assignor at the pre-claim independent medical examinations (IMEs) scheduled by defendant. The affidavit by said no-fault supervisor, who was responsible for overseeing the scheduling of IMEs and the mailing of notification of same to the claimant and its attorney, was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that the IME requests were properly addressed and mailed ( 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]). Defendant thereby effectively rebutted the presumption of medical necessity which ordinarily attaches to plaintiff's claim forms, and raised a triable issue of fact as to the medical necessity of the supplies provided to plaintiff's assignor ( id.; Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 7 Misc 3d 18 [App Term, 2d 11th Jud Dists 2004]). Accordingly, the court properly denied plaintiff's motion for summary judgment.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree 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.