St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50488(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 (Thomas D. Raffaele, J.), entered August 15, 2008. The judgment, entered pursuant to so much of an order of the same court entered June 20, 2008 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of said causes of action, awarded plaintiff the principal sum of $3,169.96.

ORDERED that the judgment is reversed without costs, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court, Queens County for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied defendant’s cross motion for summary judgment. A judgment was entered in favor of plaintiff in the principal sum of $3,169.96. Defendant appeals from the judgment.

Defendant argues that plaintiff did not establish a prima facie case since the affidavit of plaintiff’s billing manager failed to establish that the bills in question were mailed and that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers 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]). In addition, the affidavit sufficiently established the mailing of plaintiff’s bills (see [*2]Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Defendant further argues that plaintiff had no standing to bring the instant action since the assignment of benefits form was defective in that it was signed by a minor. However, since defendant did not timely object to the form or seek verification of the assignment, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Furthermore, defendant argues that it tolled the 30-day statutory time period within which it had to pay or deny plaintiff’s claims regarding the bills sought to be recovered in plaintiff’s first through sixth, eighth and ninth causes of action. It is undisputed that defendant timely mailed its initial request for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification request, which was mailed on the 30th day after the initial verification request, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial request for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant argues that the Civil Court improperly awarded plaintiff summary judgment as to its seventh cause of action since defendant timely denied that bill on the ground that the fees charged were excessive and not in accordance with the Workers’ Compensation fee schedule, defendant did not annex any proof to establish said defense. Consequently, defendant failed to establish the existence of an issue of fact with respect to this cause of action.

Defendant also argues that the Civil Court improperly denied its cross motion for summary judgment as to plaintiff’s tenth cause of action because plaintiff failed to rebut defendant’s prima facie showing of lack of medical necessity as to this cause of action. However, since defendant did not appeal from the underlying order and the appeal from the judgment does not bring up for review so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s tenth cause of action, said part of the order is not before us on appeal.

Accordingly, the judgment is reversed, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches
of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the
branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*3]
Decision Date: March 19, 2010