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Trimed Medical Supply, Inc. As Assignee of Angelique White v. American Transit Insurance Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


October 18, 2011

TRIMED MEDICAL SUPPLY, INC. AS ASSIGNEE OF ANGELIQUE WHITE,
APPELLANT-RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE CO.,
RESPONDENT-APPELLANT.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 1, 2010.

Trimed Med. Supply, Inc. v American Tr. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from by plaintiff, denied plaintiff's motion for an order of preclusion and for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for an order of preclusion and for summary judgment, and denied defendant's cross motion for summary judgment dismissing the complaint. Both parties appeal.

As defendant served discovery responses less than one week later than required by a so-ordered discovery stipulation, we find, under the totality of the circumstances presented, that the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from offering evidence in this matter and in denying the branch of plaintiff's motion seeking summary judgment (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2007]).

With respect to defendant's cross motion for summary judgment dismissing the complaint, we find that defendant demonstrated that its claim denial forms were timely mailed in accordance with defendant's standard office practices and procedures (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]). As to the claims for $341.34, $195.50 and $795, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing was not rebutted by plaintiff. Consequently, defendant's cross motion for summary judgment dismissing the complaint should have been granted as to these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY 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 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

The papers submitted in support of defendant's cross motion indicate that, while plaintiff's claim for $178 was not submitted within 45 days of the provision of the equipment at issue, plaintiff offered an explanation for the claim's untimeliness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), and there is an issue of fact as to the reasonableness of that explanation (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant's cross motion for summary judgment was properly denied as to this claim.

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: October 18, 2011

20111018

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