Jiang Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50945(U))

Index No. CV-3161-20/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 16 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/ Order to Show Cause and supporting papers 1,2,9 ; Notice of Cross Motion and supporting papers 10,11 ; Answering Affidavits and supporting papers 10,11 ; Replying Affidavits and supporting papers 15,16 ; Filed papers; Other exhibits: 3-8,12-14 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint, is denied, and plaintiff’s cross-motion for summary judgment in the total sum of $6,947.81, is denied.

In this action by a medical provider to recover assigned first-party no-fault benefits for medical services rendered, consisting of ten (10) bills totaling $6,947.81, defendant insurer moves for summary judgment dismissing the complaint based upon assignor’s failure to appear for orthopedic independent medical examinations (“IME’s”) on 08/14/2019, and then on 09/14/2019, not satisfying a condition precedent of its insurance policy (see 11 NYCRR 65-1.1), which defendant raised as a ninth affirmative defense in its amended verified Answer, thereby vitiating insurer’s liability (see Stephan Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept 2006]). Defendant asserts it denied each of the 10 claims premised on a breach of condition to coverage, which voided the policy ab-initio, resulting in no coverage to the no-fault claims retroactively dated to the date of the automobile accident of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

In opposition to the motion, plaintiff argues defendant failed to properly and timely schedule the orthopedic IME’s pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of prescribed verification forms or claims (see W.H.O. Acupuncture , P.C. v Travelers Home & Marine Ins. Co., 36 Misc 3d 152[A][2nd Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff contends that defendant concedes (and admits) it received the first claim on 05/31/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 05/31/2019, or within 06/30/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also contends that defendant concedes (and admits) it received the second claim on 06/17/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 06/17/2019, or within 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff further contends that defendant concedes (and admits) it received the third claim on 07/03/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 07/03/2019, or within 08/02/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also cross-moves for summary judgment in the sum of $6,947.81, asserting it timely submitted the 10 NF-3 Notice of Claim forms to defendant for this total, and payment is overdue. Plaintiff contends that defendant’s NF-10 Denial of Claim forms for each of the 10 submitted claims, is prima facie proof of plaintiff’s timely submission and defendant’s receipt of each claim and that payment is overdue.

In opposition to plaintiff’s cross-motion, defendant denies plaintiff’s arguments in support, and raises the doctrine of res judicata as a defense to plaintiff’s contentions, citing 2 civil decisions from the City of New York, a copy of each of which was provided by defendant to the Court:

1) LONGEVITY MEDICAL SUPPLY, INC., a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 713404/20 (Civ Court, City of New York, Queens Cty, dated 6/9/2021 (Greenburg, J.), and

2) NORTH QUEENS SURGICAL CENTER, a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 715694/20 (Civ Court, City of New York, Queens Cty, dated 6/6/2021 (Lanzetta, J.).

Defendant argues that both decisions demonstrate that assignor Marisol Torres’ failure to appear at duly scheduled IME’s were the grounds for dismissal, with prejudice, and since plaintiff’s assignor herein is the same Marisol Torres as in the two cited cases, the instant cross-motion by plaintiff should be denied under the doctrine of res judicata, accordingly.

In addition, defendant replies in further support of its motion for summary judgment, that it is entitled to dismissal on the grounds it timely denied reimbursements for plaintiff’s bills, based upon the failure of plaintiff’s assignor to appear at duly scheduled IME’s, thereby failing to satisfy a condition precedent to the insurer’s liability under the no-fault policy, which voided the policy ab-initio, resulting in no coverage for the no-fault claims, retroactively dated to the automobile accident date of 04/25/2019.

Here, the Court finds that although defendant established that the notices of the scheduled orthopedic IME’s were properly mailed in accordance with defendant’s standard office practice and procedures (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d,11th & 13th Jud Dists 2007), and that plaintiff’s assignor failed to appear at each of the IME’s (see [*2]Stephen Fogel Psychological , P.C. v Progressive Cas. Ins. Co., 35 AD3d 720,721 [2nd Dept 2006]; Utopia Equipment, Inc. v ELRAC, Inc.,56 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]), defendant failed to demonstrate that the scheduling of the orthopedic IME’s complied with Regulation 11 NYCRR §65-3.5[d], which prescribes a statutory 30-calendar-day time frame for the timely holding of IME’s, from the date of receipt of the verification forms or claims (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]), or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2nd Dept 2005]; 11 NYCRR 65-3.5).

Therefore, the Court finds that defendant has failed to demonstrate a prima facie entitlement for summary judgment (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]), in that defendant failed to timely schedule its first orthopedic IME for each of the first submitted three claims, pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of the claims ^[FN1] (see Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 57 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra at *2; see also O & M Medical, P.C. v Travelers Indem. Co., 47 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the first claim was received from plaintiff on 05/31/2019, requiring a scheduled IME by 06/30/2019. However, defendant’s scheduling letter for its first orthopedic IME for this claim was dated 07/30/2019, with its first orthopedic IME date set for 08/14/2019, which was untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

In addition, Defendant’s own NF-10 Denial of Claim form dated 10/22/2019, admits the second claim was received from plaintiff on 06/17/2019, requiring a scheduled IME by 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME for this claim was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc. supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

Furthermore, Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the third claim was received from plaintiff on 07/03/2019, requiring a scheduled IME by 08/02/2019. [*3]However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

The remaining 7 NF-3 Notices of Claim were denied by defendant on the same basis of plaintiff assignor’s failure to appear at the scheduled orthopedic IME of 08/14/2019, and the rescheduled IME of 9/04/2019.^[FN2] However, these NF-10 Denials of Claim relied upon the same untimely and improperly scheduled IME date of 08/14/2019. Since the first IME date of 08/14/2019 was untimely and improper, the rescheduled IME date of 09/04/2019 was also untimely and improper, and it did not toll defendant’s time to pay or deny those bills (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]); see also Concourse Chiropractic, PLLC. v Fiduciary Ins. Co. Of America, 35 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2012).

In effect, there was no duly scheduled IME at which plaintiff failed to appear, as the scheduling letters for the IME’s were each scheduled to be held beyond the 30 days of defendant’s receipt of the claims, as required by 11 NYCRR 65-3.5(d), rendering each scheduling letter a nullity (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; O & M Medical, P.C. v Travelers Indem. Co., supra).

Therefore, defendant failed to demonstrate that it had properly denied the claim, based upon plaintiff’s breach of a condition precedent to coverage, which voided the policy ab-initio, resulting in no coverage for the 10 no-fault claims, retroactively dated to the automobile accident date of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra at 721]; 11 NYCRR 65-1.1).

Accordingly, the motion by defendant for summary judgment dismissing plaintiff’s complaint on this basis, is denied.

The Court now turns to plaintiff’s cross-motion for summary judgment for the amount in the complaint. Here, the Court determines that plaintiff has failed to demonstrate a prima facie entitlement for summary judgment, by proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra).

Plaintiff attempts to use defendant’s NF-10 Denial of Claim forms as proof that it submitted its 10 claims totaling the sum of $6,947.81, which have not been timely paid or denied. “The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant received [*4]it, and that the no-fault benefits were overdue” (see AR Medical Rehabilitation v State-Wide Ins. Co., 49 Misc 3d 918 [Civil Ct, New York City 2015], citing Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081-82 [2nd Dept 2011]).

This was later affirmed by the Court of Appeals wherein it held that a medical provider is required to submit proof of mailing through evidence in admissible form, which may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business” (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). “The burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 919, citing Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., supra at 506-07).

Neither Court addressed the issue of whether a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 920). However, the Appellate Term had previously ruled that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to demonstrate that the claim form was sent by the medical provider and received by the insurer (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2014). In this instance, “plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518[a]; instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received” (Id.).^[FN3] “Defendant’s denials admitted the receipt of the bills at issue…and plaintiff was not required to establish a CPLR 4518 foundation for the bills” (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A][App Term 2nd Dept, 2d, 11th & 13th Jud Dists 2014]). Therefore, a “plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of defendant’s denial form indicating when defendant received the claim and when it denied it” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 921, citing Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term 2nd Dept 2006]).

In the instant matter, plaintiff has failed to demonstrate it prima facie entitlement to summary judgment, by submission of a copy of its NF-3 proof of claim forms accompanied by an affidavit of its billing manager as to his personal knowledge of the issuance of the claim, in addition to defendant’s NF-10 denial of claim form. Accordingly, plaintiff’s cross-motion for summary judgment in the sum of $6,947.81 on this basis is denied.

Nevertheless, defendant has opposed plaintiff’s cross-motion for summary judgment, by raising the doctrine of res judicata (claim preclusion), as a defense to plaintiff’s contentions, citing two civil decisions from the City of New York, wherein plaintiff’s assignor, Marisol Torres, was also named as a plaintiff’s assignor, with the named defendant, NY Central Mut. Fire Ins. Company. Both decisions noted the failure of plaintiff’s assignor to appear at duly scheduled [*5]IME’s, and resulted in the Court’s dismissal of each case.

The Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action (see CPLR 3212[b]; Alvarez v Prospect Hospital, supra at 324). Though defendant has interposed the doctrine of res judicata as a defense, under res judicata, “a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction” (see Cortazar v Tomasino, 150 AD3d668 [2nd Dept 2017]). Or more simply, “a valid final judgment bars future actions between the same parties on the same cause of action” (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously ‘brought to a final conclusion'” (see Blue Sky, LLC. v Jerry’s Self Storage, LLC., 145 AD3d 945 [2nd Dept 2016]).

The Court further finds that the cited cases by defendant fail to demonstrate they are a disposition on the merits for the same litigation between the same parties, or those in privity with them, for a cause of action arising from the same transaction (see Cortazar v Tomasino, supra). Indeed, the cited cases refer to litigants, Longevity Medical Supply, Inc. and North Queens Surgical Center, as assignees of Marisol Torres, but there is no link to Jiang Acupuncture, P.C., other than there being the same assignor in the instant matter. Also, there is no factual showing that the cited matters refer to the same transaction.

Accordingly, the Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action.

Any remaining contentions of the parties are either unavailing or have been rendered academic.

The foregoing constitutes the decision and order of this Court.

Dated: September 23, 2021

HON. JAMES F. MATTHEWS

J.D.C.

Footnotes

Footnote 1:The Court notes that “the record does not reflect when [defendant] received the ‘prescribed verification forms'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015][citing to dissent of Friedman, J.P. at 844]), though “the 30 day period within which the IME was supposed to be scheduled, is measured from the date on which [defendant insurer] received the prescribed verification form from [plaintiff] itself (citing to Ops Gen Counsel NY Ins Dept No. 03-02-12, Feb 2003, remaining cite omitted ), noting that the prescribed verification form to which §65-3.5[d] refers is, in the case of a non-hospital healthcare provider, as in the instant matter, ‘NYS Form NF-3, Verification of Treatment by Attending Physician or Other Provider of Health Service [emphasis added]'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra at dissent of Friedman, J.P. at page 845).

Footnote 2:The remaining NF-10 Denial of Claim forms also refer to the Reason For Denial (#33) as being based upon the failure of plaintiff assignor to appear at a scheduled Chiropractor and Acupuncture IME held on 08/21/2019. However, no factual evidence, such as a dated scheduling letter, or failure to appear affidavit, to support this statement was submitted, and the Court makes no ruling in this regard. Additional reasons for denial (#33) were for plaintiff’s submission of excessive workers’ compensation fee schedule rates, and submission of inaccurate insurance information based upon the insurer’s investigation, but no supporting evidence was submitted and the Court also makes no ruling in this regard.

Footnote 3:The Court notes that the Eagle case ultimately turned on the fact that defendant insurer consented to the admission into evidence of plaintiff’s claim form.