Opinion
2014-02-19
WYCKOFF HEIGHTS MEDICAL CENTER, as assignee of Aida Ruiz, et al., respondents, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, appellant.
Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega of counsel), for appellant. Joseph Henig, P.C., Bellmore, N.Y., for respondents.
Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega of counsel), for appellant. Joseph Henig, P.C., Bellmore, N.Y., for respondents.
, J.P., CHERYL E. CHAMBERS, L. PRISCILLA, and HALL ROBERT J. MILLER, JJ.
In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered December 20, 2011, which granted the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on the first cause of action.
ORDERED that the order is reversed, on the law, with costs, and the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on its first cause of action is denied.
The plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz (hereinafter the plaintiff), made a prima facie showing of entitlement to judgment as a matter of law on to the first cause of action by submitting evidence that the prescribed statutory billing forms were mailed to and received by the defendant, which failed to either pay or deny the claim within the requisite 30–day period ( seeInsurance Law § 5106[a]; 11 NYCRR 65–3.8[c]; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 278, 660 N.Y.S.2d 536, 683 N.E.2d 1;Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292, [2d Dept. 2013]; Westchester Med. Ctr. v. Hereford Ins. Co., 95 A.D.3d 1306, 1306–1307, 944 N.Y.S.2d 900;Westchester Med. Ctr. v. Lancer Ins. Co., 94 A.D.3d 984, 942 N.Y.S.2d 373;NYU–Hosp. for Joint Diseases v. American Intl. Group, Inc., 89 A.D.3d 702, 703, 936 N.Y.S.2d 548;Mount Sinai Hosp. v. Country Wide Ins. Co., 85 A.D.3d 1136, 1137, 926 N.Y.S.2d 306).
However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF–10 within the requisite 30–day period ( seeInsurance Law § 5106[a]; 11 NYCRR 65–3.8[c] ). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity ( see NYU–Hospital For Joint Diseases v. Esurance Ins. Co., 84 A.D.3d 1190, 1191–1192, 923 N.Y.S.2d 686;St. Barnabas Hosp., v. Penrac, Inc., 79 A.D.3d 733, 734, 911 N.Y.S.2d 920).
Contrary to the plaintiff's contention, the fact that the defendant attached to its denial of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician's signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance ( seeCPLR 2106; cf. Vista Surgical Supplies, Inc. v. Travelers Ins. Co., 50 A.D.3d 778, 860 N.Y.S.2d 532). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued ( cf. 11 NYCRR 65–3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form ( see New York Univ. Hosp. Rusk Inst. v. Government Empls. Ins. Co., 39 A.D.3d 832, 832–833, 835 N.Y.S.2d 612; A.B. Med. Servs., PLLC v. Liberty Mut. Ins. Co., 39 A.D.3d 779, 780, 835 N.Y.S.2d 614;A.B. Med. Servs. PLLC v. GEICO Cas. Ins. Co., 39 A.D.3d 778, 779, 835 N.Y.S.2d 616).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the first cause of action.