Summary
In Advanced Med. Diagnostics of Queens, P.C. v. Geico Ins. Co., 38 Misc 3d 140(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2013], the court applied a ‘grouping of contacts’ or ‘center of gravity’ analysis to a first-party no-fault case in which the plaintiff's assignor was injured in a motor vehicle accident which occurred in New York.
Summary of this case from Dassa Orthopedic Med. Servs. PC v. Amica Mut. Ins. Co.Opinion
No. 2011–1648K C.
2013-02-1
ADVANCED MEDICAL DIAGNOSTICS OF QUEENS, P.C. as Assignee of Lorette Campbell, Respondent, v. GEICO INS. CO., Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered February 23, 2011. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
Plaintiff's assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff's motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff's motion and denied defendant's cross motion.
With respect to plaintiff's motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30–day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law ( seeInsurance Law § 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010];see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006] ), and the defense of a lack of medical necessity for the rendered services can be precluded ( see Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556 [2008];Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 282 [1997] ). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary ( see Elkins v. New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A.2d 409 [1990] ), and an insurer can raise a lack of medical necessity defense at any time ( seeNJSA 39:6A–5; Kowaleski v. Allstate Ins. Co., 238 NJ Super 210 [1990] ). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey ( see Matter of Allstate Ins. Co. [Stolarz–New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219 [1993] ).
Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control ( see A.B. Med. Servs., PLLC v. GEICO Cas. Ins. Co., 27 Misc.3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v. Selective Ins. Co. of Am., 25 Misc.3d 48 [App Term, 9th & 10th Jud Dists 2009] ). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff's motion for summary judgment should have been denied.
With respect to defendant's cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant's contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A–5.1 (a), as implemented by NJAC 11:3–5.1(a) ( see also New Jersey Mfrs. Ins. Co. v. Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272–273 [2009] ) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant's cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.
Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied.