July 17, 2006

PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U))

https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-progressive-cas-ins-co-2006-ny-slip-op-51432u/

Court: Appellate Term, Second Department
Decided: July 17, 2006
Citation: 2006 NY Slip Op 51432(U) · 12 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Split result
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

PDG Psychological P.C. v Progressive Cas. Ins. Co., 12 Misc 3d 144(A), 2006 NY Slip Op 51432(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof. The Appellate Term, Second Department, modified the order to grant partial summary judgment on the claim whose receipt the insurer acknowledged in its denial form. The claims representative's affidavit established neither actual mailing nor a sufficiently detailed office procedure, precluding the medical-necessity defense under 11 NYCRR 65-3.8 (c). For the other two claims, the provider's officer established neither actual mailing nor an office procedure, and certified mail receipts were not linked to those claims. The matter was remanded for interest and attorney fees under Insurance Law § 5106 (a) and proceedings on the remaining claims. A separate concurrence agreed only with the result.

Reported in New York Official Reports at PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U))

[*1]

PDG Psychological P.C. v Progressive Cas. Ins. Co.

2006 NY Slip Op 51432(U) [12 Misc 3d 144(A)]

Decided on July 17, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ
2005-1620 Q C. NO. 2005-1620 Q C

PDG PSYCHOLOGICAL P.C. AAO WELLETTE VASSELL, Appellant,
against
PROGRESSIVE CASUALTY INSURANCE CO., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered May 1, 2005. The order denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Order modified by providing that plaintiff’s cross motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and by deleting the award of $50 costs to defendant, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment on its claim for $1,125.01, by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, its denial of claim form, indicating the date on which the claim was received, adequately established that plaintiff sent and that defendant received said claim (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant failed to establish that the denial for said $1,125.01 claim was mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually mailed. Nor did the affidavit contain a [*2]sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558; Nyack Hosp. v [*3]
Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant is precluded from raising its proffered defense of lack of medical necessity as to said $1,125.01 claim and plaintiff is entitled to summary judgment thereon.

Plaintiff’s moving papers were insufficient to raise a presumption that it submitted the claims in the amounts of $1,200.92 and $540.56. The affidavit of plaintiff’s corporate officer did not state that he actually mailed these claims, nor did he describe his office’s practice and procedure for mailing no-fault claims to insurers. The certified mail receipt does not prove that the particular claims were actually received where, as here, there is no evidence that these claims were mailed to defendant under these certified mail receipts and no signed certified mail return receipt card has been produced (see New York & Presbyt. Hosp. v Allstate Ins. Co., AD3d , 2006 NY Slip Op 03558, supra). Accordingly, plaintiff failed to shift the burden as to said claims.

Consequently, plaintiff’s motion should have been granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $1,125.01 and the matter is remanded to the court below for the calculation of statutory interest and an [*4]
assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

In view of the foregoing, the award of $50 costs to defendant should be stricken.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 17, 2006

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 provider proved one claim through the insurer's denial showing receipt, but not two others, because its officer neither stated he mailed them nor described a mailing practice and certified receipts were not tied to them.

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

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: Different mailing results for different documents or claims in one decision

Held the insurer's denial of one claim not proved mailed for lack of personal knowledge or a detailed office-practice description, and two of the provider's claims not proved mailed, while receipt of the third was shown by the denial.

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, 55 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U)) FollowedThe insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.

Cited by

All Mental Care Medicine, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50612(U))The provider's renewed default-judgment motion failed for lack of a business-records foundation and proof that its claims were submitted.

Similar decisions

PDG Psychological, P.C. v Lumbermans Mut. Cas. Co. (2007 NY Slip Op 51343(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U))A provider may rely on denial forms annexed to an insurer's motion to establish the insurer's receipt of the claims.
PDG Psychological, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50436(U))The provider's trial witnesses failed to establish a business-record foundation for its bill under CPLR 4518.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 51757(U))The insurer's unrefuted need for discovery on licensing defeated the provider's summary judgment motion.