September 15, 2021

Custom Rx Pharm. v Country Wide Ins. Co. (2021 NY Slip Op 50860(U))

https://www.beynensonlaw.com/case-law/custom-rx-pharm-v-country-wide-ins-co-2021-ny-slip-op-50860u/

Court: Civil Court of the City of New York, Queens County
Judge: Wendy Changyong Li, J.
Decided: September 15, 2021
Citation: 2021 NY Slip Op 50860(U)
Posture: Summary judgment
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Custom Rx Pharm. v Country Wide Ins. Co., 2021 NY Slip Op 50860(U) (Civ Ct, Queens County 2021)

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.

The insurer failed to prove late accident notice, and the provider failed to establish entitlement to payment with admissible evidence. The Civil Court, Queens County, denied both summary judgment motions under CPLR 3212 (b). The insurer's supervisor relied on file review without personal knowledge, failed to authenticate MVAIC correspondence, and gave a vague hearsay account of a telephone communication with MVAIC. This did not establish failure to give accident notice within 30 days under 11 NYCRR 65-1.1 (d). The provider's biller likewise offered hearsay based on record review. Submission of a claim within 45 days of providing prescriptions would not establish timely accident notice. The insurer's denial form showed denial 12 days after receipt, so it did not establish overdue payment.

Reported in New York Official Reports at Custom Rx Pharm. v Country Wide Ins. Co. (2021 NY Slip Op 50860(U))

Custom Rx Pharmacy As Assignee Of Styles, Plaintiff(s),
against
Country Wide Insurance Company, Defendant(s).

CV-714768-19/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Jaffe & Velasquez LLP

40 Wall Street, 12th Floor

New York, NY 10005

Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 24, 2020 (“Motion”) and file stamped by the court on February 7, 2020. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated August 19, 2020 (“Cross-Motion”) and electronically filed with the court on August 24, 2020. 2

Defendant’s Affirmation in Opposition dated February 10, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on February 12, 2021. 3

II. Background

In a summons and complaint filed July 25, 2019, Plaintiff sued Defendant insurance company to recover $1,893.00 in unpaid first party No-Fault benefits for medical prescriptions provided to Plaintiff’s assignor Styles, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]) on the ground that Plaintiff lacked standing (CPLR 3211[a][3]) and failed to state a cause of action (CPLR 3211[a][7]). Plaintiff cross-moved for summary judgment on its claim against Defendant.

III. Discussion

The Mandatory Personal Injury Protection Endorsement is required in all automobile insurance contracts (11 NYCRR § 65-1.1[a]) which provides that “[i]n the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the [insurance] Company, or any of the [insurance] Company’s authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” (see 11 NYCRR § 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-90 [2011]). Thus, as here, Plaintiff assignor Styles was required to provide notice of the accident to Defendant within thirty (30) days of the accident (Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, 879 N.E.2d 1291, 1293 (2007), see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-63 [2008]). The notice of accident requirement is a condition precedent to a No-Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 590).

As to the matter before this Court, in an affidavit sworn January 28, 2020, Mena-Sibrian, Defendant’s No-Fault Litigation/Arbitration Supervisor, attested that Defendant first received notice of Styles’ accident in a correspondence from MVAIC dated January 17, 2019 and postmarked February 5, 2019, which was more than thirty (30) days after Styles’ accident on October 9, 2018 (see Motion, Kang Aff., Ex. C). Mena-Sibrian claimed to have personal knowledge of the file based on her responsibility for the claim and “review of the file which was kept in the ordinary course of business by [Defendant]” (Motion, Kang Aff., Ex. C at 1). Since review of records kept in the ordinary course of business does not confer upon the affiant personal knowledge, Mena-Sibrian’s statement that Defendant first received notice of Plaintiff’s accident in the January 17, 2019 correspondence postmarked February 5, 2019 (see Motion, Kang Aff., Ex. F) is hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, [*2]935 [2d Dept 2021]). Because Mena-Sibrian did not identify the correspondence postmarked February 5, 2019 annexed as Exhibit F, she failed to authenticate it to render it admissible evidence (see Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Likewise, Mena-Sibrian’s account that Defendant “contacted MCVIAC [sic] via the telephone, and a MVIA [sic] representative notified [Defendant] that MVIAC received the initial notification of the loss on November 20, 2018” (Motion, Kang Aff., Ex. C at 3) was vague and clearly not based on Mena-Sibrian’s personal knowledge, so also failed to demonstrate the untimeliness of Plaintiff’s notice of the accident to MVAIC (see Nuzzi v Gallagher, 60 AD3d 653, 654 [2d Dept 2009]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Here, Defendant failed to establish its prima facie case with admissible evidence. Since Defendant failed to meet its burden of demonstrating entitlement to summary judgment, this Court denies Defendant’s motion for summary judgment without consideration of Plaintiff’s opposition (Luigi v Avis Cab Co., Inc., 96 AD3d 809, 810 [2d Dept 2012]; Alexander v Gordon, 95 AD3d 1245, 1246 [2d Dept 2012]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Plaintiff presented an affidavit dated March 27, 2020, in which Munson, Plaintiff’s biller, attested that, based on her review of Plaintiff’s records maintained in the ordinary course of business, Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (see Cross-Motion, Aff. of Jillian M. Enright, Ex. 2 at 1). Munson’s affidavit suffered from the same infirmity as the affidavit of Mena-Sibrian, in that the review of records did not imbue an affiant with personal knowledge, so Munson’s assertion regarding Plaintiff’s timely submission of claim was also hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935). In addition, it is noted that the fact that Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (even if it was established by admissible evidence, while it did not here), does not provide that Styles had notified the insurance company within 30 days of the alleged car accident as required.

Although an insurer’s denial of claim form may establish the insurer’s receipt of a medical service provider’s claim and untimely denial of that claim, (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), Defendant’s denial of claim form dated May 7, 2019, which acknowledged receipt of Plaintiff’s claim on April 25, 2019, demonstrated that Defendant denied Plaintiff’s claim twelve (12) days after receiving it (see Motion, Kang Aff. Ex. E). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion without consideration of Defendant’s opposition (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

Dated: September 15, 2021

Queens County Civil Court

____________________________

Honorable Wendy Changyong Li, J.C.C.

Legal questions (2)

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the claimant's cross motion failed because its biller's affidavit, based only on review of business records, lacked personal knowledge of submission and was hearsay; the insurer's denial form also showed a denial twelve days after receipt.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

Proof of mailing

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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 did not establish mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the provider's biller affidavit that claims were submitted within 45 days was hearsay because it rested only on a review of business records; the insurer's denial form showed receipt but also a timely denial 12 days later.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

New York & Presbyt. Hosp. v Country-Wide Ins. Co. (2011 NY Slip Op 07149) FollowedA timely proof of claim does not satisfy the 30-day accident-notice requirement when submitted after that period expires.
Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159) FollowedThe insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim.
NYU-Hospital for Joint Diseases v Esurance Ins. Co. (2011 NY Slip Op 04436)The insurer raised factual issues about timely denial and whether the assignor's injury resulted from driving while intoxicated.
Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 26269)An improper self-referral defense survives a late denial when a health care provider seeks benefits through an entity in which it has an interest.
Lopes v Liberty Mut. Ins. Co. (2009 NY Slip Op 51279(U))A payment authorization showing no intent to transfer no-fault rights does not deprive an injured claimant of standing.

Similar decisions

Advanced Recovery Equip. & Supplies v Travelers Ins. Co. (2022 NY Slip Op 50690(U))The insurer failed to establish its fee-schedule defense because its analyst's affidavit did not establish expert qualifications.
Advanced Recovery E. & S. v MVAIC (2021 NY Slip Op 51035(U))MVAIC established that the assignor failed to satisfy the notice-of-claim and accident-reporting conditions for coverage.
Apazidis, M.D., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50498(U))The insurer's summary judgment motion failed on hearsay proof of good cause and verification notices naming a different provider.
Top Choice Pharm. Corp. v Merchants Mut. Ins. Co. (2022 NY Slip Op 50867(U))The insurer waived its assignment objection and failed to support its medical-necessity defense with a nonconclusory opinion.
Jiang Acupuncture PC v State Farm Ins. Co. (2023 NY Slip Op 50961(U))The insurer failed to prove good cause for licensing verification with admissible evidence supporting summary judgment.