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Midtown Medical Associates, P.C. As Assignee of Simeon Johnson v. Clarendon National Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 13, 2012

MIDTOWN MEDICAL ASSOCIATES, P.C. AS ASSIGNEE OF SIMEON JOHNSON,
RESPONDENT, --
v.
CLARENDON NATIONAL INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 24, 2011.

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co.

Decided on July 13, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that the denial of claim forms had been 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]). Furthermore, defendant demonstrated that one o f the claims at issue, for dates of service June 6, 2006 through June 12, 2006, had been paid in full, as a copy of the cashed check was annexed to its motion. Plaintiff failed to dispute this payment in its opposition papers. Consequently, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted.

Defendant also demonstrated that plaintiff had submitted three of the claims at issue, for dates of service July 16, 2007 through July 18, 2007, September 28, 2007, and June 3, 2008 through June 19, 2008, more than 45 days after the dates that the services had been rendered, in violation of Insurance Department Regulations (11 NYCRR) § 65-1.1. Moreover, the denial of claim forms pertaining to these three claims advised plaintiff that the late submission of the claims would be excused if plaintiff provided a reasonable justification for their lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), which plaintiff failed to do. Consequently, the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these three claims should also have been granted (see Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50417[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Finally, in support of its motion, defendant submitted two affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the remaining services rendered by plaintiff. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see High Quality Med., P.C. v GEICO Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52373[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims should also have been granted (see 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]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: July 13, 2012

20120713

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