Delta Diagnostic Radiology, P.C. v. Chubb Group of Insurance

Decision Date20 August 2007
Docket NumberNo. 2006-362 RI C.,2006-362 RI C.
Citation17 Misc.3d 16,2007 NY Slip Op 27345,847 N.Y.S.2d 322
PartiesDELTA DIAGNOSTIC RADIOLOGY, P.C., as Assignee of LIDAINE PHILOGENE, Respondent, v. CHUBB GROUP OF INSURANCE, Appellant.
CourtNew York Supreme Court — Appellate Term
OPINION OF THE COURT MEMORANDUM.

Judgment reversed without costs, order granting plaintiff's cross motion for summary judgment and denying defendant's motion to strike the complaint, or, in the alternative, to compel discovery, vacated, plaintiff's cross motion for summary judgment denied and defendant's motion granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant's discovery demands, and, within 30 days after service of such responses, to produce a witness for an examination before trial.

In this action by a provider to recover assigned first-party nofault benefits, defendant moved to strike the complaint due to plaintiff's failure to comply with defendant's discovery demands or, in the alternative, for an order, pursuant to CPLR 3124 and 3126 compelling plaintiff to comply with defendant's discovery demands. Plaintiff cross-moved for summary judgment. The court granted plaintiff's cross motion and denied defendant's motion as moot. This appeal by defendant ensued.

A plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant contends that plaintiff failed to make a prima facie showing that its claims were overdue in view of the fact that defendant timely denied plaintiff's claims. Such an argument lacks merit since a claim becomes overdue if no payment is made within the 30-day claim determination period, notwithstanding the fact that defendant timely denied the claim (see Insurance Law § 5106 [a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277 [2d Dept 2007]). However, plaintiff nevertheless was not entitled to summary judgment.

In the instant case, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]) should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant's duty to ensure compliance with the insurer's standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed (see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001], supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The denial of claim forms stated that the claims were denied based upon affirmed peer review reports, thereby preserving the defense of lack of medical necessity, and defendant's...

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