A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 2007 NYSlipOp 51342(U) (App. Term 2nd). Here the Court found that plaintiff failed to establish their prima facie because the affidavit of the owner was insfucient, citing, among others, Dan Medical. The Court went on grant defendant summary judgment despite the fact that they did not cross appeal from the part of the underlying order denying them summary judgment.Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] ["(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment"]).
PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 2007 NYSlipOp 51343(U). This decision, from the same Court as above held that:
Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
Compare this to all the other appellate term cases allowed the defendant to bring this issue up first time on appeal. This is further addressed in Judge Golia’s dissent.
Next the Court held that defendant did not establish that the denial of claim for was timely mailed.
In opposition to plaintiff’s motion for summary judgment, defendant failed to establish that the denial of claim form was timely mailed since the affidavit of defendant’s claims representative did not state that she actually mailed the denial of claim form or set forth proof of defendant’s office practices and procedures designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish that it mailed a timely denial of claim form to plaintiff (see 11 NYCRR 65-3.8 [c]), it is precluded from raising the proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
This too is addressed in Golia’s dissent.