[*1]
Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co.
2009 NY Slip Op 50230(U) [22 Misc 3d 133(A)]
Decided on February 11, 2009
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through February 23, 2009; it will not be published in the printed Official Reports.


Decided on February 11, 2009
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., RIOS and STEINHARDT, JJ
2007-1732 K C.

Top Choice Medical, P.C. a/a/o CARMEN ROSADO, Appellant,

against

New York Central Mutual Fire Insurance Co., Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered September 4, 2007. The order granted defendant's motion for summary judgment dismissing the complaint.


Order reversed without costs and defendant's motion for summary judgment dismissing the complaint denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack
of medical necessity. In opposition, plaintiff asserted, inter alia, that defendant did not establish that the subject denial of claim form was timely mailed. The court granted defendant's motion. This appeal by plaintiff ensued.

The affidavit submitted by defendant's litigation examiner failed to establish that defendant timely mailed its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed, since it merely stated that the denial of claim form was mailed and did not sufficiently set forth the steps which comprise defendant's mailing practices and procedures (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). [*2]Accordingly, the order granting defendant's motion for summary judgment is reversed and defendant's motion is denied.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: February 11, 2009