Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010.
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that plaintiff's cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action 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 and granted plaintiff's cross motion for summary judgment.
In support of its motion for summary judgment, defendant submitted an
affidavit executed by its litigation examiner which was sufficient to
establish that defendant's NF-10 form, which denied plaintiff's claim
on the ground of lack of medical necessity, had been timely mailed
(see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of
Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted a peer review report of its psychologist, to which
plaintiff objected in its opposing papers on the ground that the report was not in proper form. The Civil Court correctly held that the
peer review report was not in admissible form because, pursuant to CPLR 2106, defendant's psychologist could not affirm the truth of the
statements contained therein (see Pascucci v Wilke, 60 AD3d 486 ) and while the peer review report contained a notary public's stamp
and signature, it contained no attestation that the psychologist had been duly sworn or that she had appeared before the notary public
(see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th
Jud Dists 2012]; New Millennium Psychological
Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term,
2d, 11th & 13th Jud Dists 2011]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).
With respect to plaintiff's cross motion for summary judgment, 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 failed to pay or deny the claim within
the requisite 30-day period, or that the defendant 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 ; see also New York
& Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 ). Here, while plaintiff demonstrated that the claim had not been paid, it failed to
demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim
form (see 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]).
Accordingly, the order is modified by providing that plaintiff's cross motion for summary judgment is denied.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: ...