Radiology Today, P.C. v GEICO Ins. Co., 2008 NY Slip Op 28259 (App. Term, 2d)
In its reply papers, plaintiff asserted that the peer review report upon which [*2]defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a facsimile of the peer reviewer’s signature. Although defendant argues that plaintiff’s contention was improperly raised for the first time in plaintiff’s reply papers, the reply affirmation from plaintiff’s counsel was responsive to defendant’s papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff’s motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor’s signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). Accordingly, the judgment is affirmed.We note that the affirmation by Dr. Sharahy, annexed to the appellant’s brief, may not be considered by the court as it is dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).
All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 2008 NY Slip Op 51417(U) (App. Term, 2d) (I posted this last week as well)
Contrary to plaintiff’s contention, the denial of claim form submitted by defendant, which included a defense of lack of medical necessity as per a peer review report, was not fatally defective. Although defendant omitted certain sections from the denial of claim form, the sections were not relevant to the instant claim. The denial of claim form “promptly apprise[d] the claimant with a high degree of specificity of the ground . . . on which the disclaimer [wa]s [*2]predicated . . .” (New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006] [internal quotations and citations omitted]) and defendant established that said denial of claim form was approved by the New York State Department of Insurance (id.). Consequently, defendant’s defense of lack of medically necessity was not precluded.
Mega Supplies Billing, Inc. v GEICO Ins. Co., 2008 NY Slip Op 51418(U) (App. Term, 2d) (I posted this last week too)
Same as above.
Health Plus Med., P.C. v American Mfrs. Mut. Ins. Co., 2008 NY Slip Op 51444(U) (App. Term, 2d)
With respect to defendants’ motion for summary judgment, defendants contend that they made out a prima facie case entitling them to summary judgment since they established that they timely denied plaintiff’s claims on the ground that the services provided were not medically necessary and plaintiff failed to rebut said showing. However, the affidavit of defendants’ no-fault examiner was insufficient either to establish that she personally mailed the verification requests and denial of claim forms at issue or to give rise to a presumption that defendants timely mailed them in accordance with defendants’ standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since defendants failed to establish that the claims were denied within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), the court below properly denied defendants’ motion for summary judgment because defendants did not establish that the defense upon which they sought summary judgment was not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Zuckerman v City of New York, 49 NY2d 557 [1980])
Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex., 2008 NY Slip Op 51448(U) (App. Term, 2d)
Contrary to defendant’s contention, the affidavit submitted by plaintiff in support of its motion for summary judgment established that plaintiff’s biller possessed sufficient 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 (cf. Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the court below properly determined that plaintiff made a prima facie showing of its entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Although defendant admittedly failed to pay or deny plaintiff’s claims within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), and failed to establish that said period was extended by a timely request for verification (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), it was not precluded from raising its defense of lack of coverage based upon its conclusion that the underlying loss was the result of an intentional act (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). However, the affidavit of defendant’s investigator, submitted in opposition to plaintiff’s motion and in support of defendant’s cross motion for summary judgment, was insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, the court below properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
S & B Neurocare, P.C. v GEICO Ins. Co., 2008 NY Slip Op 51450(U) (App. Term, 2d)
Similarly, to the extent that defendant’s motion seeks summary judgment dismissing the complaint in the instant action, the court properly denied the relief requested. To establish its entitlement to summary judgment, defendant was required to present sufficient evidence in admissible form to show, as a matter of law, that there was an absence of a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Defendant’s [*2]proffered defense, that plaintiff is ineligible for reimbursement of no-fault benefits under Insurance Department Regulations [11 NYCRR] § 65-3.16 (a) (12) because its owner is not properly licensed as a medical doctor in New York (see Business Corporation Law §§ 1507, 1508), has not been established as a matter of law (see CPLR 4540; see also Boston Post Rd. Med. Imaging, P.C. v Progressive Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51173[U] [App Term, 9th & 10th Jud Dists 2007]; see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra). To the extent defendant sought, in the alternative, an order compelling plaintiff to provide discovery, the lower court properly denied that branch of defendant’s motion. Defendant failed to submit an affidavit specifying any facts entitling it to pretrial proceedings almost a year after the notice of trial was filed (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]).
Central Radiology Servs., P.C. v Mercury Cas. Co., 2008 NY Slip Op 51453(U) (App. Term, 2d)(I posted this last week)
Defendant did not demonstrate sufficient reason for vacatur of the judgment. We find [*2]that the stipulations do not contain an unenforceable penalty clause (see ABCO Refrig. Supply Corp. v Designs by Keiser Corp., 239 AD2d 165 [1997]). Contrary to defendant’s assertions, this is not a situation in which plaintiff sought damages upon defendant’s breach of a stipulation that created a new agreement between the parties (e.g. Quaker Oats Co. v Reilly, 274 AD2d 565 [2000]). Rather, the stipulations are “a variant of a judgment on consent” (Omega Diagnostic Imaging, P.C. v State Farm Mut. Ins. Co., 16 Misc 3d 1113[A], 2007 NY Slip Op 51405[U] [Nassau Dist Ct 2007]). Defendant consented to entry of judgment for the full amount sought in the complaint, while plaintiff agreed to accept a reduced sum provided that defendant tendered such payment within an agreed upon time period (see id.). Accordingly, judgment was entered in the proper amount pursuant to the stipulations and defendant was not entitled to relief from the judgment.
Midwood Med. Equip. & Supply, Inc. v Auto One Ins. Co., 2008 NY Slip Op 51459(U) (App. Term, 2d)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff was not licensed and even if it was licensed, it failed to plead and identify its license in its complaint as required by CPLR 3015 (e). The court below granted defendant’s cross motion for summary judgment, holding that plaintiff failed to plead in its complaint its licensure status as required by CPLR 3015 (e) and the instant appeal by plaintiff ensued.
Defendant’s contention that plaintiff was not licensed was purely conclusory as it was not based on any factual evidence in the record.
Further, CPLR 3015 (e) provides, in pertinent part:
“Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York . . . the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license . . . The failure of the plaintiff to [*2]comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter ” (emphasis added).
CPLR 3015 (e) is only applicable to actions against a consumer (see Matter of Migdal Plumbing & Heating Corp. [Dakar Devs.], 232 AD2d 62 [1997]). In the case at bar, defendant is not a consumer but is the insurance company from which plaintiff is seeking to recover assigned first-party no-fault benefits. Accordingly, the court below improperly granted defendant’s motion for summary judgment dismissing the complaint.
Vista Surgical Supplies, Inc. v Autoone Ins. Co., 2008 NY Slip Op 51460(U) (App. Term, 2d)
However, defendant was not entitled to summary judgment dismissing plaintiff’s $766.57 [*2]claim. Although defendant’s cross motion for summary judgment dismissing said claim was based upon the failure of plaintiff’s assignor to appear for two IMEs, defendant failed to proffer proof from someone with personal knowledge of the assignor’s failure to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing said claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Shtarkman v MVAIC, 2008 NY Slip Op 51447(U) (App. Term, 2d)
Beta Supply, Inc. v Government Empls. Ins. Co., 2008 NY Slip Op 51406(U) (App. Term, 1st)
In this action to recover no-fault first party benefits, defendant’s documentary submissions were sufficient to give rise to a presumption that defendant’s verification requests were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]). Inasmuch as an insurer is not required to pay or deny a claim until it receives verification of all relevant requested information (see 11 NYCRR 65-3.8[b][3]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]), and it being undisputed on this record that plaintiff did not respond to defendant’s verification requests, plaintiff’s claim for payment was premature. Under these circumstances, where no triable issue exists as to whether plaintiff provided defendant with the requested information, defendant is entitled to summary judgment dismissing the action (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).