Opinion
2005-1394 KC.
Decided July 18, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered July 15, 2005. The order, insofar as appealed from as limited by plaintiff's brief, upon granting defendant's motion for reargument of plaintiff's summary judgment motion, which was granted in a prior order dated March 2, 2005, denied plaintiff's motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
Plaintiff commenced this action to recover $1,791.73 in first-party no-fault benefits for medical services rendered to its assignor. Thereafter, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In March 2005, the court below granted plaintiff's motion and denied defendant's cross motion as moot. In July 2005, defendant moved by order to show cause for reargument of the court's March order, which motion plaintiff opposed. By order entered July 15, 2005, the court granted reargument and, insofar as is relevant hereto, denied plaintiff's motion for summary judgment.
Contrary to the determination of the court below, the affidavit plaintiff submitted in support of its motion for summary judgment was sufficient to allow the annexed claim forms to be considered by the court. The deficiency in plaintiff's moving papers concerning proof of its submission of the claims to defendant was cured by the acknowledgment of receipt of the claims in the denial of claim forms annexed to plaintiff's moving papers ( see A.B. Med. Servs. v. New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136 [A], 2004 NY Slip Op 50507[U] [App Term, 2d 11th Jud Dists]). The burden then shifted to defendant to demonstrate a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon a review of the record, we find that defendant raised a triable issue of fact by showing that it timely requested verification and made the requisite follow-up requests ( see 11 NYCRR 65-3.5 [b]), and, upon receiving the requested verification, timely denied the claims based on lack of medical necessity as set forth in detailed peer review reports ( see A.B. Med Servs. PLLC v. Travelers Prop Cas. Corp., 8 Misc 3d 139 [A], 2005 NY Slip Op 51330[U] [App Term, 2d 11th Jud Dists]; Park Health Ctr. v. Peerless Ins. Co., 2 Misc 3d 127 [A], 2003 NY Slip Op 51687 [App Term, 2d 11th Jud Dists]; Triboro Chiropractic and Acupuncture v. Electric Ins. Co., 2 Misc 3d 135 [A], 2004 NY Slip Op 50215[U] [App Term, 2d 11th Jud Dists]). Accordingly, plaintiff's motion for summary judgment was properly denied.
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 am constrained to 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.