Friendly Physician, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 50747(U))

Civil Court of the City of New York, Kings County

047582/06

Attorney for Plaintiff:

Ilona Finkelshteytn, Esq.

2503 65th Street

Brooklyn, New York 111204

Attorney for Defendant:

Jaffe & Nohavicka

40 Wall Street – 12th Floor

New York, NY 10005

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first party no-fault benefits pursuant to CPLR 5106(a) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.), for medical services rendered.

Plaintiff moves for summary judgment as a matter of law on the grounds that the claimants assigned their “no fault” benefits to plaintiff pursuant to the terms of the insurance policies sold by defendant, and the timely submission of invoices and/or bills to defendant in accordance with the New York State Insurance Law, were not denied or paid within 30 days, pursuant to the New York State Insurance Law. Defendant cross-moves for summary judgment and opposes plaintiff’s motion on the grounds that the denial was timely and based upon the

revocation of the assignment by the assignor, Richard Proctor.

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Tortello v. Carlin, 260 AD2d 201 [1st Dept., 1999]). The burden of proof, as well as persuasion rests with the proponent of the summary judgment motion. Once the burden is satisfied, the opponent of the motion must produce sufficient evidence, in admissible form, establishing the existence of a triable issue of fact. [*2]

Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. (See, Insurance Law 5106[a]; 11 NYCRR 65.15[h]). Failure to pay benefits within the 30-day requirement renders the benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. In addition, the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See, Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 N.Y.S.2d 536 (1997).

A plaintiff ordinarily establishes the submission of the claim forms by demonstrating that proof of proper mailing, which gives rise to the presumption that the claim forms were received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. See, Residential Holding Corp., v. Scottsdale Ins. Co., 286 AD2d 679 [2001].

The plaintiff has annexed the affidavit of Kristina Meledina, billing manager, of the assignee, which makes reference to the plaintiff’s standard office mailing practices and/or procedures. The affidavit is sufficient to establish plaintiff’s mailing of its claim forms.

In addition, the court finds that the plaintiff has established its prima facie case, inasmuch as the defendant’s denial of claim forms which are annexed to defendant’s opposition papers as Exhibit “A,” as well as plaintiff’s moving papers, establish the dates of defendant’s receipt of the claim forms. See, PDG Psychological, P.C., (Jones) v. Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op. 50246[U][AT 2nd & 11th Jud. Dists.].

Defendant opposes plaintiff’s motion and cross-moves for summary judgment on the grounds that the denial was timely, as well as the fact that the assignment was revoked by the assignor, Richard Proctor. In support of its cross-motion, the defendant annexes a copy of the letter it received from Richard Proctor, which indicates that he was in fact involved in a car accident on 6/4/05, that he was requesting to drop all claims and that he would be willing to be held responsible for all medical bills.

After careful consideration of the moving papers, supporting documents and opposition thereto, the court finds that plaintiff is entitled to summary judgment as a matter of law.

In order for a provider to receive direct payment from an insurer under the no-fault regulation, the claims must have been assigned to the provider pursuant to an assignment containing language required by the regulation (See, 11 NYCRR 65-3.11[b][2].).

Plaintiff has annexed a copy of assignment of benefits form, which was signed by the assignor, Richard Proctor on June 4, 2005. [See, Exhibit “1” to plaintiff’s moving papers]. The defendant does not argue the validity of the assignment of benefits form, and there is no indication that same was an issue which verification was requested. The applicable rules and regulations are as follows: [*3]

§65.3-11 – Direct Payments

(a) An insurer shall pay benefits for any element of loss, other than death benefits, directly to the applicant or, when appropriate, to the applicants parent or legal guardian or to any person legally responsible for necessities, or, upon assignment by the applicant or any of the aforementioned persons, shall pay benefits directly to providers of health care services as covered under section five thousand one hundred two (a)(1) of this article….Emphasis added.

(2)(d) If an assignment has been furnished an insurer, the assignor or legal representative of the assignor shall not unilaterally revoke the assignment after the services for which the assignment was originally executed were rendered. If the assignment is revoked for services not yet rendered, the assignor or leal representative shall provide written notification to the insurer that the assignee has been notified of the revocation.

The services rendered by plaintiff-provider were rendered on 6/17/05 and 6/27/05, all of which total $304.79. The assignor’s revocation letter which is addressed to defendant is dated 6/25/05. Section 65.3-11 states that the assignor may not unilaterally revoke the assignment after services for which the assignment was originally executed were rendered. Therefore, the assignor could not revoke the assignment as to those services rendered on or before 6/25/07. The regulation also states that if the assignment is revoked for services not yet rendered, the assignor or legal representative shall provide written notification to the insurer that the assignee has been notified of the revocation.

The defendant has not submitted to this court, and the record is void as to a letter from the assignor that the assignee was notified of the revocation. The letter which is annexed to defendant’s cross-motion is a letter which merely states that the assignor is “requesting to drop all claims.” The defendant’s proof is insufficient to establish its prima facie entitlement to summary judgment.

Accordingly, summary judgment is hereby awarded in favor of plaintiff and against defendant in the amount of $304.79, with interest at 2% per month from 7/22/05, costs and attorney’s fees. Defendant’s cross-motion is hereby denied.

This constitutes the order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

March ______, 2007

______________________________

Alice Fisher Rubin, J.C.C. [*4]