Opinion
2007-148 QC.
Decided on August 19, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 11, 2006. The order denied plaintiff's motion for summary judgment.
Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, 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 plaintiff's claim for $694; as so modified, affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff's $694 claim on the ground that the supplies provided were not medically necessary based on an affirmed peer review report, and that it timely denied plaintiff's $1,021 and $289 claims based on the assignor's failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff's motion for summary judgment, and the instant appeal by plaintiff ensued.
Contrary to plaintiff's contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms since it described in detail the standard office practice and procedure used to ensure that the verification requests and denial of claim forms were properly addressed and mailed ( see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679).
While plaintiff argues that the affirmed peer review report submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the supplies provided were medically necessary, this contention is raised for the first time on appeal. In any event, it lacks merit because the affirmed peer review report set forth a factual basis and medical rationale for the determination that the supplies provided were not medically necessary, thereby raising a triable issue of fact as to plaintiff's $694 claim ( see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832).
Turning to plaintiff's remaining claims ($1,021 and $289), while defendant asserted that it timely denied said claims based on the assignor's failure to appear for two scheduled IMEs, defendant failed to establish by proof in admissible form that the assignor failed to appear for the IMEs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720). Consequently, plaintiff was entitled to summary judgment on these claims.
Accordingly, plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff summary judgment on its claims for $1,021 and $289, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the claim for $694.
Weston Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
I concur with the majority as to its affirmance of the lower court's denial of plaintiff's summary judgment motion with respect to the $694 claim, which claim was denied based on a sufficient and timely peer review report.
I also concur with the majority in its finding that "[c]ontrary to plaintiff's contention, the affidavit submitted by defendant sufficiently established the timely mailing of the verification and follow-up verification requests as well as the denial of claim forms. . . ."
However, I notably disagree with the majority in its reading of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. ( 35 AD3d 720).
In that case, the Appellate Division, Second Department, while affirming the majority ruling of the Appellate Term, specifically rejected the distinction the Appellate Term created between "pre" and "post" claims. More importantly, the Appellate Division held that the "appearance of the insured for IMEs [independent medical examinations] at any time is a condition precedent to the insurer's liability on the policy ( see 11 NYCRR 65-1.1)" ( Stephen Fogel Psychological, P.C., 35 AD3d at 722 [emphasis supplied]).
Inasmuch as my colleagues and I agree that the notices were sent, it is now incumbent upon plaintiff to establish compliance with the condition precedent, that is the assignor's submission to an IME.
Indeed, this case is strikingly similar to Stephen Fogel Psychological, P.C. in that in both cases the defendant failed to establish, in admissible form, the assignor's nonappearance at the IME, and the plaintiff similarly failed to meet its burden of establishing that it has met the condition precedent to creating the insurer's liability.