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Top Choice Medical, P.C. As Assignee of Elizabeth Gonzalez v. Geico General Insurance Company

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


November 4, 2011

TOP CHOICE MEDICAL, P.C. AS ASSIGNEE OF ELIZABETH GONZALEZ,
APPELLANT,
v.
GEICO GENERAL INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered December 11, 2009.

Top Choice Med., P.C. v GEICO Gen. Ins. Co.

Decided on November 4, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment. This action involves eight claim forms for services provided to plaintiff's assignor.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

The affidavit submitted by plaintiff's billing clerk was sufficient to establish that the claim forms which sought to recover the sums of $323.25 and $450.77, and which were annexed to plaintiff's moving papers, were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that these claims were mailed to defendant (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]) and that defendant had failed to pay or deny the claims within the requisite 30-day period. Consequently, plaintiff established its prima facie entitlement to summary judgment on these claims (see Westchester Med. Ctr., 78 AD3d 1168), and the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as defendant merely stated that it had never received the claim forms, defendant failed to raise a triable issue of fact, and plaintiff should have been awarded summary judgment on these two claims (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the claims seeking reimbursement in the sums of $129.28 and $71.49, while plaintiff made a prima facie showing of its entitlement to summary judgment on these claims, the affidavit submitted by defendant in opposition to plaintiff's motion was sufficient to establish that the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant raised a triable issue of fact (see Zuckerman, 49 NY2d 557; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]), and plaintiff's motion for summary judgment was properly denied with respect to these two claims.

Finally, as to the claims seeking reimbursement in the sums of $394.73, $193.95, $531.64 and $258.56, plaintiff failed to demonstrate that defendant had not either paid or denied the claims within the requisite 30-day period, or that defendant had issued timely denials of claims that were conclusory, vague or without merit as a matter of law. Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment on these four claims (see Insurance Law § 5106 [a]; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted.

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

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

While I disagree with the sufficiency of defendant's affidavit attesting to the mailing of the subject denials, I am constrained to concur based upon the Appellate Division's acceptance of a similar affidavit (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, proof of the mailing of the denials predicated upon a lack of medical necessity constitutes a valid basis to grant defendant's motion for summary judgment. I disagree with the majority's reliance on Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (78 AD3d 1168 [2010]), as there is no evidence that a partial payment was made in this case.

Decision Date: November 04, 2011

20111104

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