First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50594(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 23, 2008. The judgment, entered upon an order of the same court entered June 19, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $8,153.54.

ORDERED that the judgment is reversed without costs, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, and this appeal by defendant ensued.

Since the affidavit of defendant’s claims representative conceded receipt of the claims in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. [*2]Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s prima facie entitlement to summary judgment was established.

The affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the NF-10 denial of claim forms and verification requests since it described, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices or procedures used to ensure that said documents were properly mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

In regard to plaintiff’s second, fourth, fifth, sixth and ninth causes of action, as well as so much of the third cause of action as sought to recover upon a $30.80 claim, defendant timely mailed its initial requests for verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), and plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on either the 29th or 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was required to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]), “the 30-day period within which the defendant was required to pay or deny the claim[s] did not commence to run [and] plaintiff’s action is premature” (id. at 865 [citations omitted]). As a result, defendant was entitled to summary judgment dismissing these causes of action.

Defendant also established that it had timely denied the two $182.84 and three $523.20 claims on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 26 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]), and defendant’s opposition papers were sufficient to raise a triable issue of fact with respect thereto. Consequently, neither party was entitled to summary judgment on the first, seventh and eighth causes of action, as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Moreover, we note that defendant correctly argues that plaintiff submitted duplicate claims for $209.32. Therefore, defendant is entitled to summary judgment dismissing the tenth cause of action.

Accordingly, the judgment is reversed, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the [*3]Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 2010