Opinion
No. 2011–904KC.
2012-03-6
VINCENT MEDICAL SERVICES, P.C. as Assignee of Eke Okoro, Respondent, v. CLARENDON NATIONAL INS. CO., Appellant.
Present WESTON, J.P., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 15, 2010. The order, insofar as appealed from, granted the branch of plaintiff's motion for summary judgment seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied defendant's cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff's motion seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied the branch of defendant's cross motion seeking summary judgment with respect to said portion of the fifth cause of action, is deemed from a judgment of the same court entered August 20, 2010 awarding plaintiff the principal sum of $618.84 ( seeCPLR 5512[a]; Neuman v. Otto, 114 A.D.2d 791 [1985] ).
ORDERED that the judgment is affirmed, without costs; and it is further,
ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through third and sixth through tenth causes of action, and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted; as so modified, the order, insofar as appealed from and insofar as reviewed on direct appeal, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order entered July 15, 2010 as granted plaintiff's motion for summary judgment to the extent of awarding plaintiff summary judgment upon so much of the fifth cause of action as seeks to recover upon two claim forms, each in the sum of $309.42, and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered awarding plaintiff the principal sum of $618.84 on that portion of its fifth cause of action.
In the July 15, 2010 order, the Civil Court found, among other things, that, with respect to the first through third, sixth, seventh, ninth and tenth causes of action, plaintiff had established its prima facie entitlement to judgment as a matter of law, that defendant had established timely and proper denial of claim forms and that the sole issue for trial was the medical necessity of the services rendered to plaintiff's assignor. In support of the branches of its cross motion seeking to dismiss these causes of action, defendant submitted, among other things, affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor's determinations that there was a lack of medical necessity for the services rendered. As defendant's showing that the services were not medically necessary was unrebutted by plaintiff and plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment on these causes of action, the branches of defendant's cross motion seeking summary judgment dismissing the first through third, sixth, seventh, ninth and tenth causes of action are granted ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v. American Tr. Ins. Co., 18 Misc.3d 128[A], 2007 N.Y. Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ).
Contrary to the Civil Court's determination, we find that defendant's cross motion demonstrated its entitlement to summary judgment upon the eighth cause of action. The record establishes that defendant timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) the denial of claim forms pertaining to the claims at issue in the eighth cause of action and that these claims were denied on the ground of lack of medical necessity based upon affirmed IME reports. As plaintiff failed to rebut defendant's prima facie showing, defendant was entitled to summary judgment dismissing plaintiff's eighth cause of action ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v. American Tr. Ins. Co., 18 Misc.3d 128[A], 2007 N.Y. Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] ).
With respect to the portion of the fifth cause of action seeking to recover upon two claim forms, each in the sum of $309.42, we find that plaintiff established its prima facie case ( see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010];Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128[A], 2011 N.Y. Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). Since defendant did not address these two $309.42 claim forms in its motion papers submitted to the Civil Court, defendant failed to rebut plaintiff's prima facie showing, and the court properly awarded plaintiff summary judgment upon these claim forms.
With respect to the portion of the fifth cause of action which seeks to recover upon the $608.40 claim form for services rendered to the assignor from June 1, 2006 through June 22, 2006, the affidavit of plaintiff's billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff's claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff's motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant's examiner contained a detailed recitation of defendant's office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff. Plaintiff did not oppose this branch of defendant's cross motion or submit further papers in support of its motion for summary judgment upon this claim form. Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the complaint as to the $608.40 claim form is granted.
Defendant's contentions with respect to the fourth cause of action lack merit, and we do not disturb the Civil Court's determination that defendant was not entitled to summary judgment dismissing this cause of action.
Accordingly, the judgment is affirmed and the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through third and sixth through tenth causes of action and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted.