Opinion
2008-1436 N C.
Decided June 2, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 9, 2008. The order denied plaintiff's motion for summary judgment.
Order reversed without costs, plaintiff's motion for summary judgment granted, and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney's fees.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff had failed to make out a prima facie case in that plaintiff had failed to prove the admissibility of the assignment of benefits form and that, in any event, defendant had denied plaintiff's claim on the ground of lack of medical necessity. The District Court denied plaintiff's motion for summary judgment, finding that the peer review report demonstrated the existence of a triable issue of fact as to medical necessity. This appeal by plaintiff ensued.
Defendant asserts that the affidavit submitted by plaintiff's billing manager was insufficient to establish that the documents annexed to plaintiff's motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it ( see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. , 21 Misc 3d 133 [A], 2008 NY Slip Op 52184[U] [App Term, 9th 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. , 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court's determination that plaintiff established its prima facie case. We note that, contrary to defendant's contention, proof of the assignment of benefits form is not an element of plaintiff's prima facie case ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742 ).
In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed ( e.g. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th 13th Jud Dists 2009]; see New York Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded ( see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. , 15 Misc 3d 33 [App Term, 2d 11th Jud Dist 2007]).
Accordingly, plaintiff's motion for summary judgment is granted and the matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder. Rudolph, P.J., Molia and Scheinkman, JJ., concur.