April 13, 2005
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))
https://www.beynensonlaw.com/case-law/capio-med-p-c-v-progressive-cas-ins-co-2005-nyslipop-50526u/
- Decided
- April 13, 2005
- Citation
- 2005 NY Slip Op 50526(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 4 and followed in 6 later decisions (see Cited by)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))
| Capio Med., P.C. v Progressive Cas. Ins. Co. |
| 2005 NYSlipOp 50526(U) |
| Decided on April 13, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-877 K C
against
Progressive Casualty Insurance Company, Appellant.
Appeal by defendant from an order of the Civil Court, Kings County (R. Garson, J.), entered on April 2, 2004, which granted plaintiff’s motion for summary judgment in the sum of $1,684.12.
Order unanimously affirmed without costs.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, its denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, these respective claims (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Moreover, the lack of authentication of an [*2]assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms constitutes a waiver of any defenses with respect thereto (see id.; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna
[*3]
Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).
In opposition to plaintiff’s contention that the defendant’s denial was untimely, the defendant argues that its 30-day period was extended by its verification requests for examinations under oath (EUOs.) The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). With regard to claims submitted on or after April 5, 2002, an insurer’s request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules (see 11 NYCRR 65-3.5 [b], [e]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Additionally, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d
130[A], 2004 NY Slip Op 50693[U], supra; see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).
It is uncontroverted that plaintiff’s claims were submitted subsequent to April 5, 2002. However, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. Even assuming the existence of an insurance policy containing the revised endorsement, defendant has nonetheless failed to establish by competent evidence that its EUO verification requests were timely so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). The purported EUO notices dated July 1, 2002, for which there was no admissible proof of mailing, do not, in any event, constitute proper notice of EUOs, as they merely indicate a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).
Accordingly, defendant failed to establish a timely denial of the claim and it is thus precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of non-conformity with the Workers’ Compensation schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]).
[*4]
Decision Date: April 13, 2005
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Rejected the insurer's challenge and held the provider established its prima facie case, since the insurer's denial forms stating the dates the claims were received showed the claims were sent and received and payment was overdue.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response
Held the insurer's denial forms, indicating the dates the claims were received, adequately established that the provider sent and the insurer received the claims.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: On the merits, the assignment or the claimant's showing is adequate, or the alleged defect is not a defect (rules on the question, but another ground decided the case)
Rejected the insurer's authentication objection because no statute or regulation requires authentication of the assignor's signature, adding that the insurer waived it by not seeking verification of the assignments or noting any deficiency in its denials.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U)) FollowedAn insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
- A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506) FollowedThe providers' billing manager affidavit failed to establish submission of properly completed claim forms.
- New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
- S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50693(U)) FollowedThe insurer's EUO defense was precluded by untimely denials, and its accident-fraud evidence was inadmissible.
- Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482)The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
- S&m Supply Inc. v Lancer Ins. Co. (2004 NY Slip Op 50695(U))The insurer failed to establish an EUO policy endorsement or timely mailing of verification requests, so the 30-day claim period was not tolled.
- Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221) FollowedEUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
- Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity.
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U)) FollowedThe provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days.
Cited by (24)
A label shows how the later decision treated this one.
- Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28342) Contrasted (cf., but see)The 30-day examination deadline in 11 NYCRR 65-3.5 (d) does not apply to EUOs. The provider challenged summary judgment dismissing its claims because the initial EUO was set more than 30 days after receipt of the claim.
- S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U)) Contrasted (cf., but see)The insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
- Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50294(U)) Contrasted (cf., but see)An EUO governed by amended Regulation 68 must be scheduled within a reasonable time after claim receipt, rather than within 30 days.
- Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51438(U)) Contrasted (cf., but see)The insurer failed to prove timely mailing of its denial and was precluded from asserting its excessive-charge defense.
- Ultra Diagnostics Imaging v Liberty Mut. Ins. Co. (2005 NY Slip Op 25402) FollowedThe insurer's wage-verification fraud allegations failed to establish a lack-of-coverage defense exempt from untimely-denial preclusion.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U)) FollowedThe providers obtained partial summary judgment because denials were untimely or defenses lacked evidentiary support.
- Vista Surgical Supplies, Inc. v Travelers Ins. Co. (2006 NY Slip Op 52502(U)) FollowedThe insurer's peer reviews bearing stamped facsimile signatures were inadmissible under CPLR 2106 on the record presented.
- PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U)) FollowedThe provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof.
- Star Med. Servs. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50505(U)) FollowedThe insurer failed to establish an EUO-authorizing endorsement or submit admissible evidence of a staged-accident defense.
- Bronxborough Med., P.C. v New Hampshire Ins. Co. (2006 NY Slip Op 51354(U)) FollowedThe insurer failed to raise a triable issue on IME nonappearance because it did not establish mailing of the scheduling requests.
Show all 24 citing decisions
- Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545)
- Harbor Med. & Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50378(U))
- Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50582(U))
- Struhl v Progressive Cas. Ins. Co. (2005 NYSlipOp 50864(U))
- Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))
- All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 27458)
- Ocean Diagnostic Imaging P.C. v Commerce Ins. Co. (2005 NYSlipOp 50642(U))
- A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 51316(U))
- Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U))
- S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U))
- Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51526(U))
- Function Supply v Progressive Ins. Co. (2005 NY Slip Op 51755(U))
- A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50474(U))
- Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 52034(U))
Similar decisions
- Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.
- Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 25336)The insurer's investigator affidavit raised a triable coverage issue based on a founded belief that the collision furthered insurance fraud.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U))A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny.
- AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))An untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.