Opinion
2005-1266 QC.
Decided July 17, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered June 30, 2005. The order denied plaintiff's motion for summary judgment.
Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists]). In the instant case, the record establishes a prima facie showing of plaintiff's entitlement to summary judgment ( see e.g. Careplus Med. Supply Inc. v. State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d 11th Jud Dists 2005]). Although defendant's denial of claim form was timely mailed to plaintiff, it simply stated that the claim was denied because a peer reviewer determined that the treatment was not medically necessary. Since there is no evidence that the peer review report was sent to plaintiff within the 30-day claim determination period, and the denial of claim was otherwise devoid of any factual basis or medical rationale for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claim ( see A.B. Med. Servs. PLLC v. Liberty Mut. Ins. Co., 10 Misc 3d 128 [A], 2005 NY Slip Op 51902[U] [App Term, 2d 11th Jud Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U], supra) and plaintiff is entitled to summary judgment upon said claim.
Consequently, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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.
In this regard, I note my dissent in A.B. Med. Servs. PLLC v. Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:
"If the specific reason for a denial of a no-fault claim . . . is a . . . peer review report . . . the insurer shall release a copy of that report . . . upon the written request of any of these parties." (emphasis added)
To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.