Opinion
2007-1925 S C.
Decided on November 19, 2008.
Appeal from an order of the District Court of Suffolk County, Fourth District (Gigi A. Spelman, J.), dated September 4, 2007. The order granted a motion by third-party defendant for summary judgment dismissing the third-party complaint and denied a cross motion by third-party plaintiff for summary judgment on her third-party complaint.
Order modified by providing that the motion by third-party defendant for summary judgment dismissing the third-party complaint is denied; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and MOLIA, JJ.
Plaintiff John T. Mather Memorial Hospital commenced this action against Constance Linzer to recover the principal sum of $7,797.99 for medical services rendered to her after an automobile accident. She denied liability and asserted, among other things, that since she had signed an assignment of benefits, she should not be personally liable for the payments. She then commenced a third-party action against State Farm Insurance Company (State Farm) to recover the principal sum of $7,797.99. The third-party complaint asserted that she "signed an assignment and authorization directing [State Farm] to pay Plaintiff . . . for all services rendered." State Farm denied liability and moved for summary judgment dismissing the third-party complaint, arguing that it properly denied the bills on the ground of lack of medical necessity. Linzer opposed the motion and cross-moved for summary judgment on her third-party complaint. The District Court held that since Linzer's third-party complaint, and an affirmative defense in her attorney's verified answer, alleged that Linzer executed an assignment of benefits in favor of plaintiff, she lacked standing to commence the third-party action against State Farm. As a result, the court granted State Farm summary judgment dismissing the third-party complaint and denied Linzer's cross motion. This appeal by Linzer ensued.
Although the District Court held that the record established as a matter of law that Linzer executed an assignment of no-fault benefits in favor of plaintiff, the record does not contain a copy of the document she executed. Her verified third-party complaint merely asserted that she "signed an assignment and authorization directing [State Farm] to pay Plaintiff . . . for all services rendered." Thus, there is an issue of fact as to whether Linzer signed an assignment, which transferred all of her rights and remedies to plaintiff, or whether she signed an authorization, which permitted plaintiff to bill her directly upon State Farm's denial of the claims submitted on her behalf and would permit Linzer to seek recovery from State Farm ( see Insurance Department Regulations [ 11 NYCRR] § 65-3.11 [b] [the prescribed language for an assignment of benefits, which is incorporated into the Insurance Department Regulations, provides, among other things, that an assignee may not pursue payment from the assignor for the medical services rendered where, inter alia, the claim was denied by the insurer on the ground of lack of medical necessity]; Ops Gen Counsel NY Ins Dept No. 08-04-16 [April 2008] [Note: on-line opinions]; Ops Gen Counsel NY Ins Dept No. 03-02-18 [February 2003] [Note: on-line opinions] [the patient executing an authorization retains the right to dispute the denial of a claim for benefits]). As a result, the record does not demonstrate as a matter of law that Linzer lacked standing to commence the third-party action against State Farm ( see Zuckerman v City of New York, 49 NY2d 557).
While State Farm sought summary judgment dismissing the third-party complaint on the ground of lack of medical necessity, it was not entitled to such relief since the affidavits it submitted were insufficient to establish that the claims were timely denied by proof that the denials were actually timely mailed or proof of a standard office practice or procedure designed to ensure that the denials were properly addressed and timely mailed ( see Residential Holding v Scottsdale Ins. Co., 286 AD2d 679). Consequently, since State Farm failed to demonstrate that the claims were denied within the 30-day claim determination period (Insurance Department Regulations [ 11 NYCRR] § 65-3.8 [c]), it did not establish that its defense of lack of medical necessity was not precluded ( see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. , 15 Misc 3d 33 [App Term, 2d 11th Jud Dists 2007]). Moreover, the affirmation submitted by Linzer's treating physician was sufficient to show that there is an issue of fact as to medical necessity. Accordingly, State Farm's motion for summary judgment dismissing the third-party complaint should have been denied ( see Zuckerman, 49 NY2d 557).
The parties' remaining contentions either lack merit or are improperly raised for the first time on appeal.
Rudolph, P.J., McCabe and Molia, JJ., concur.