A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied a motion for partial summary judgment by plaintiff A.B. Medical Services PLLC in the sum of $4,410.22.

Order reversed without costs, motion by plaintiff A.B. Medical Services PLLC for partial summary judgment in the sum of $4,410.22 granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due thereon, and for all further proceedings on its remaining claims.

Appeal by plaintiffs Lvov Acupuncture P.C. and Somun Acupuncture P.C. unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff A.B. Medical Services PLLC (A.B. Medical) established a prima facie entitlement to partial summary judgment in the sum of $4,410.22 by proof that it submitted claims, setting forth the fact and the amounts of the losses 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]).

It is uncontroverted on the record that defendant did not timely pay or deny A.B. [*2]Medical’s claim for $439.04, which said plaintiff has limited to $439.02, within the 30-day statutory period (11 NYCRR 65-3.8 [c]). Accordingly, defendant is precluded, with certain exceptions not relevant here, from raising most defenses with regard to said claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

The record furthermore does not contain a denial of claim for plaintiff’s claim in the sum of $1,972.08, which plaintiff established was submitted to defendant on August 16, 2002. Even assuming that defendant’s denial of claim form dated August 30, 2002, may be deemed to constitute a timely denial of plaintiff’s claim for $1,972.08, on the stated ground that plaintiff’s assignor failed to appear for IMEs, the form is fatally defective since it omitted numerous items of requested information, and thus was incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Moreover, in opposition to plaintiff’s motion, defendant has failed to proffer competent proof in admissible form that it mailed the requests scheduling the IMEs and has otherwise failed to address this defense. Accordingly, defendant has failed to raise triable issues of fact warranting denial of plaintiff’s motion with respect to this claim.

While defendant apparently timely denied plaintiff’s claim for $1,999.12, a timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory or vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564, supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra). The claim for $1,999.12 was in effect denied for failure to establish medical necessity. Although defendant was not required to attach to its denial of claim form the peer review upon which the denial was purportedly based (see 11 NYCRR 65-3.8 [b] [4]; see also A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50605[U] [App Term, 2d & 11th Jud Dists]), the defendant’s denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity, and it is therefore precluded from asserting said defense (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, supra) . Accordingly, even though the peer review submitted by defendant in opposition to plaintiff’s motion constituted proof in admissible form and set forth a sufficient factual basis and medical rationale for denial of the claim, said report cannot remedy the factual insufficiency of defendant’s denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, supra).

We note that the lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the motion for partial summary judgment by plaintiff A.B. Medical Services PLLC is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) [*3]and the regulations promulgated thereunder, and for all further proceedings on its remaining claims.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them are dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Rios and Belen, JJ., concur.

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

Golia, J.P. dissents and votes to hold the matter in abeyance while remanding it to the court below for a hearing.

A review of the papers submitted on appeal as well as the trial court’s file reveals a disturbing fact that requires further investigation before I can issue a decision on the merits.

It appears, from the documents that were submitted to the trial court, that either the plaintiffs or the defendant have submitted, what appears to be an altered copy of the NF-10 “Denial of Claim” form. The NF-10 form was originally submitted by the defendant as a formal denial to the underlying claim for payment.

The first page of the NF-10 form submitted by both the defendant and the plaintiffs appears to be identical. However, the second page of each document is significantly different from each other.

The copy of the second page of the NF-10 form submitted by the plaintiffs lists the Applicant for Benefits as “AB Medical Office,” whereas the first page identifies the provider as “AB Medical Services.” The first and second pages of defendant’s document shows the provider as “AB Medical Services.” AB Medical Office is not mentioned anywhere in defendant’s NF-10 form.

Additionally, the explanation as to why the claim was denied on each form differs materially. The plaintiffs’ submission contains the following statement:

“BASED ON THE ABOVE MEDICAL DOCUMENTS THAT I HAVE REVIEWED, I DO NOT RECOMMEND REIMBURSEMENT FOR EMG, NERVE CONDUCTION STUDIES, F-WAVES AND H-REFLEXES BILLED ON JULY 2, 2002 BY A.B. MEDICAL SERVICES, PLLC IN THE AMOUNT OF $1999.12 AS MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

“BASED ON PEER REVIEW BY DR. JOSEPH GREGORACE DO – MEDICAL JUSTIFICATION HAS NOT BEEN ESTABLISHED.”

In addition, the plaintiffs also submitted certain documents as exhibits as proof of mailing. Although those documents appear to be official U.S. Postal forms, they certainly do not contain information relating to postal documents. For example, the document contains a “check mark” on the box that indicates that the items were sent by “Registered” mail, yet the numbers entered under the column entitled “Article Number” have no relation to generated numbers by the Post Office. Further, there was no registered mail receipt attached. Indeed, those numbers appear to be the claim numbers which were assigned by the insurance carrier. I further note that one of the documents contains a list of thirteen items and a stamp indicating a charge of $3.90 [*4]whereas a similar document also contains a list of thirteen items with a stamp indicating a charge of $4.50 without explanation of the difference in charges.

In light of the above discrepancies, I cannot render an opinion as to the merits of
the within matter. Unlike the majority, I do not choose to ignore the maxim of “falsus in uno, falsus in omnibus” (Deering v Metcalf 74 NY 501, 503 [1878]).

Although the majority – unjustifiably, in my view – chooses to ignore these discrepancies, I cannot. It is my opinion that this matter should be remanded to the court below to determine, on the record, the reliability and the trustworthiness of the documents presented by each party.
Decision Date: November 21, 2005