New York Hosp. Med. Ctr. of Queens v Liberty Mut. Ins. Co. (2007 NY Slip Op 51256(U))

Nassau Dist Ct

34247/06

Attorneys for Plaintiff: Joseph Henig, PC

Attorneys for Defendant: Carman, Callahan & Ingham, LLP

Andrew M. Engel, J.

The Plaintiff commenced this action to recover no-fault first party benefits for medical services provided to its assignor between March 28, 2005 and April 1, 2005, inclusive, following a motor vehicle accident of March 28, 2005. The action was commenced on or about September 12, 2006; and, issue was joined on or about October 19, 2006. The Plaintiff now moves for summary judgment pursuant to CPLR § 3212. The Defendant opposes the motion and cross-moves for the same relief. The Plaintiff opposes the cross-motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court’s function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

To make out a prima facie case, the Plaintiff must establish the proper submission [*2]of its claim and the carrier’s failure to either pay or issue a valid denial within thirty (30) days of receipt thereof. 11 N.Y.C.R.R. § 65-3.8(a)(1) and (c); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 11 AD3d 664, 784 NYS2d 136 (2nd Dept. 2004); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007).

The Plaintiff’s Hospital Biller and Account Representative alleges that she billed the Defendant, for the services in question, on June 29, 2005, in the amount of $12,734.17 by certified mail return receipt requested. The Plaintiff submits the return receipt card which specifically identifies the no-fault bill of its assignor and indicates that the Defendant received and signed for the bill on July 1, 2005. The Plaintiff further alleges that the Defendant neither paid nor denied the claim within thirty (30) days of its receipt.

In opposition to the Plaintiff’s motion and in support of its cross-motion, the Defendant submits the affidavit of Mariann Yuengling, its Claims Specialist for the No-Fault Department. Ms. Yuengling admits the Defendant’s receipt of the Plaintiff’s bill, in the sum of $12,734.17, on July 1, 2005. Similarly, the Defendant does not dispute that it has not paid this claim. Based thereon, the Plaintiff has established a prima facie right to the entry of a judgment, as a matter of law. To successfully defeat the Plaintiff’s motion, it is now incumbent upon the Defendant to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [its] failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Ms. Yuengling, on the Defendant’s behalf, alleges that the Defendant did issue a denial to the Plaintiff’s claim within thirty (30) days of its receipt, based upon the untimeliness of the Plaintiff’s claim. Specifically, Ms. Yuengling alleges that the Plaintiff’s claim here in question, for the services rendered between March 28, 2005 and April 1, 2005, was dated June 29, 2005, far in excess of the forty-five (45) days now required by Insurance Department Regulations 11 N.Y.C.R.R. §§ 65-1.1 and 65-2.4 and that a denial based thereon was mailed to the Plaintiff on July 19, 2005. The Defendant argues, based thereon, that the Plaintiff’s motion must be denied and that the Defendant’s cross-motion must be granted.

During oral argument on this motion, both sides conceded that the determination of these motions will depend upon the sufficiency of the Defendant’s proof of mailing of its denial. Counsel for the Plaintiff conceded that if the Defendant’s proof of mailing is sufficient, the Plaintiff’s motion would have to be denied and the Defendant’s cross-motion granted. Conversely, counsel for the Defendant conceded that if the Defendant’s proof of mailing is insufficient the Plaintiff’s motion would have to be granted and the cross-motion denied.

The Defendant’s proof of mailing consists of Ms. Yuengling’s statement that she is [*3]“thoroughly familiar with LIBERTY MUTUAL INSURANCE COMPANY’S mailing practices and procedures through personal training and experience in document production and mailroom operation and through [her] personal observation of the execution of said mailing practices and procedures[,]” (Yuengling Affidavit 3/14/07, ¶ 12) along with her description of those mailing practices and procedures, as follows:

13…. the no-fault documents mailed from DTS [Doc Tech Services] are initially created in the Liberty Mutual No-Fault Claims department. At the start of the business day, the DTS staff downloads all documents which were electronically forwarded from the No-Fault Claims department for printing and mailing the prior business day. Any documents forwarded on a Saturday are downloaded on the following Monday. Documents forwarded to the DTS department on the day before a holiday are downloaded on the following business day.

14.Once the documents are downloaded, a member of the DTS staff verifies that the documents are properly addressed to all parties, including parties to be carbon copied on the correspondence. The documents are then printed with extra carbon copies, if warranted, folded and inserted into envelopes containing windows which display the address of the intended recipient. The envelopes are then weighed and the proper postage is affixed. The envelopes are then placed in designated bins for pickup by the United States Postal Service, an employee of which appears at this office for pickup at 2:00 p.m. and 6:00 p.m. every business day.

15.Based on the foregoing, no-fault claims correspondence, including but not limited to requests for additional verification (delay letters) and no-fault denial of claim forms issued by Liberty Mutual in the regular course of its business are properly mailed to the intended recipient the first business day after the date which appears on the document itself.(Yuengling Affidavit 3/14/07, ¶¶ 13-15)

The “procedure” Ms. Yuengling describes is not “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,”Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001) Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133(A), 787 NYS2d 675 (App. Term 2nd and 11th Jud. Dists. 2004), sufficient to raise a presumption of receipt of the denial by the Plaintiff. Stripped of all of its excess verbiage, the procedure Ms. Yuengling describes consists of nothing more than someone from Doc Tech Services folding the denial of claim form, placing it in an envelope, affixing postage thereto and placing the envelope in bins in the mail room for the United States Postal Service. There is, apparently, no record kept of the items mailed and/or no certificate of mailing against which the preparation and mailing of these denials are checked. Moreover, having “failed to specify either that it was [her] duty [*4]… to ensure compliance with said office procedure or that [she] had actual knowledge that said procedures were complied with” in this case, Contemp. Med. Diag. & Treatment, P.C. v. Government Employees Insuarnce, 6 Misc 3d 137(A), 800 NYS2d 344 (App. Term 2nd and 11th Jud. Dists. 2005), Ms. Yeungling’s affidavit “failed to make the requisite showing to establish that a proper denial was sent. (citations omitted).” Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Andrew Carothers, M.D., P.C. v. Progressive Insuarnce Company, 14 Misc 3d 1210(A), 2006 WL 3843584 (Civ. Ct. Kings Co. 2006).

Accordingly, the Plaintiff’s motion for summary judgment is granted and the Defendant’s cross-motion for summary judgment is denied. The Plaintiff is entitled to the entry of a judgment in the principle sum of $12,734.17, plus interest from July 29, 2005, 11 N.Y.C.R.R. § 65-3.9; Smithtown General Hospital v. State Farm Mutual Automobile Insurance Company, 207 AD2d 338, 615 NYS2d 426 (2nd Dept. 1994); Hempstead General Hospital v. Insurance Company of North America, 208 AD2d 501, 617 NYS2d 478 (2nd Dept. 1994), along with statutory attorneys’ fees, costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

June 21, 2007

___________________________

ANDREW M. ENGEL

J.D.C.