Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 2007 NYSlipOp 52453(U) (App. Term 2d)
Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, defendant’s litigation representative conceded receipt of plaintiff’s claim for $879.73 and that the denial of this claim was not issued within the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). The litigation representative further stated that, as a result, defendant thereafter paid the claim in its entirety as well as what it believed to be the accrued interest. Plaintiff correctly asserts that it was entitled to summary judgment awarding it statutory interest and attorney’s fees in light of defendant’s admissions and the fact that the payment was made after this action was commenced (see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [1994]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, 105-106 [App Term, 2d & 11th Jud Dists 2007]; see also Insurance Department Regulations [11 NYCRR] § 65-4.6 [e]; 2003 Ops Ins Dept No. 03-02-31 [www.ins.state.ny.us/ogco2003/rg030231.htm]).
Consequently, plaintiff’s motion for summary judgment is granted to the extent of awarding it summary judgment upon that portion of its cause of action seeking statutory interest and attorney’s fees on its claim for $879.73, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Compare this case with Bajaj v General Assur., 2007 NYSlipOp 27487 (App. Term 2d). In this case, the Appellate Term found that admissions can make out a prima facie case. Here the court says that plaintiff’s affidavit was insufficient to lay a business record foundation, but the defendant’s admission that they had paid the bill was sufficient to cure that defect, Dan Med notwithstanding. Bajaj on the other hand said that Dan Med must be overcome to make out a prima facie case.
Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 2007 NYSlipOp 52454(U) (App. Term 2d)
At the commencement of the trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff’s prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff’s claims were denied, based upon peer reviews, on the ground of lack of medical necessity. After defendant announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff’s claims were denied. The court granted plaintiff’s motion to preclude testimony by defendant’s medical expert. After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued.
Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify (see Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept]).