Opinion
2009-629 K C.
Decided July 7, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 22, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is denied.
PRESENT: STEINHARDT, J.P., PESCE and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court granted defendant's motion, and the instant appeal ensued.
The affidavit of an employee of Kemper Independence Insurance Company, submitted by defendant, failed to provide allegations concerning defendant's standard office practices and procedures designed to ensure that items are properly addressed and mailed so as to establish that defendant had timely mailed its denial of claim form ( see Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th 13th Jud Dists 2009]; see also New York Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. , 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d 11th Jud Dists 2008]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded ( see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. , 15 Misc 3d 33 [App Term, 2d 11th Jud Dists 2007]). Accordingly, the order granting defendant's motion for summary judgment is reversed and defendant's motion is denied.
In light of our determination, we do not reach plaintiff's other contentions.
Steinhardt, J.P., Pesce and Rios, JJ., concur.