July 7, 2005

Medwide Med. Supply Inc. v Country-Wide Ins. Co. (2005 NYSlipOp 51078(U))

https://www.beynensonlaw.com/case-law/medwide-med-supply-inc-v-country-wide-ins-co-2005-nyslipop-51078u/

Court: Appellate Term, Second Department
Decided: July 7, 2005
Citation: 2005 NY Slip Op 51078(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Assignments and standing Timeliness and preclusion
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Medwide Med. Supply Inc. v Country-Wide Ins. Co., 2005 NY Slip Op 51078(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

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 insurer's defenses failed because one denial was late, its medical reviews were incompetent, and assignment objections were waived. The provider proved claim submission and overdue payment. For one assignor, untimely denial precluded the defenses under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). For the other, unsworn nurses' reviews were inadmissible without an acceptable excuse and failed to establish the reviewers' qualifications. Failure to timely seek assignment verification or identify facial deficiencies in the denials waived assignment objections. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney fees; the dissent would have awarded the insurer summary judgment because an unsigned assignment could not confer standing.

Reported in New York Official Reports at Medwide Med. Supply Inc. v Country-Wide Ins. Co. (2005 NYSlipOp 51078(U))

[*1]

Medwide Med. Supply Inc. v Country-Wide Ins. Co.

2005 NYSlipOp 51078(U)

Decided on July 7, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-597 Q C

Medwide Medical Supply Inc., a/a/o Adriana Arias, Faina Aronova, Appellant,
against
Country-Wide Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered March 5, 2004, which denied its motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees.

In this action to recover $2,616.29 in first-party no-fault benefits for medical equipment supplied its assignors, plaintiff established its prima facie entitlement to [*2]
summary judgment by proof that it submitted statutory claim forms setting forth the fact and amount 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). We note that the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle to assert the facts of a no-fault claimant’s submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56, supra; Ocean Diagnostic Imaging v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51032[U] [App Term, 9th & 10th Jud Dists]).

Defendant’s untimely denial of the Arias claim (for $790.45) precluded defenses to the action, with exceptions not herein relevant, and warranted summary judgment on this ground alone (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to the [*3]
remaining claims (Aranova for a total of $1,825.84), which defendant denied on the basis of unsworn nurse’s “medical reviews” of the treatment files, as plaintiff properly objected below, said unsworn reviews “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Defendant offered no acceptable excuse for its failure to proffer the reviews in admissible form in opposition to the motion for summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, the herein medical reviews, which included no statement of the reviewing nurse’s training, observations or actual experience, failed to establish the competency of the reviewers’ medical opinions and conclusions drawn from the facts (People v Monroe, 307 AD2d 588, 591 [2003]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). [*4]

Finally, defendant’s challenge to the propriety of the assignment of benefits form is also without merit. Defendant failed timely to seek verification of the assignment’s validity or to assert facial deficiencies in the assignment form as a basis for the claims’ denial and, thereby, it waived any such objections. While we are as mindful as our dissenting colleague of the integrity of the assignment process, we are constrained by the broad language adopted by the Appellate Division which unambiguously refers all issues bearing upon the validity of a no-fault benefits assignment to the verification process (New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Presbyterian Hosp. In City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]) and which this court applied in analogous circumstances (e.g. Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 6 Misc 3d 130[A], 2005 NY Slip Op 50076[U] [App Term, 2d & 11th Jud Dists]). [*5]

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J. and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint in the following memorandum:

I simply cannot concur with the majority opinion as relates to the facts of this case.

With regard to the facts herein, a document has been submitted as an “assignment” of benefits by the alleged eligible insured to the benefit of the plaintiff medical provider. It is, in fact, not an assignment, or any other document with “legal”
significance. It is simply a preprinted form, that is not signed, acknowledged, or ratified by anyone. Indeed, it doesn’t even rise to the level of a forgery.

Nevertheless, the majority finds that this “document” falls within the line of cases that holds that the failure to demand verification during the claims procedure constitutes a waiver and precludes any objection to the assignment form (see Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists]). Therefore, my colleagues find that this paper should be deemed to be equivalent to an assignment form that was signed but not notarized, or notarized but failed in some other aspect.

Even in the simplest of circumstances no one would present a document for payment without making sure that a signature was affixed thereon. It appears that this simplest of circumstances does not appeal to the majority.

The line of appellate cases relied upon by the majority, and others on which I participated, have all dealt with assignments which contained the signature of the eligible insured person. My dissent in this case does not conflict with my findings in those cases and I therefore do not address whether or not I still adhere to those decisions.

I simply do not fathom how an unsigned piece of paper can form the predicate for an order granting summary judgment directing payment from anyone to anyone.

The mere fact that the defendant failed “timely to seek verification of the assignment’s validity or to assert facial deficiencies” should not be deemed to confer standing to the holder of an unsigned piece of paper and thereby result in a money judgment.

Accordingly, I dissent and vote to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint.
Decision Date: July 07, 2005

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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the unsworn nurse medical reviews were not competent evidence to defeat summary judgment, no excuse was offered, and they failed to state the nurse's training or experience, so the timely denied claims were awarded.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the supplier established its prima facie case by proof of submitting statutory claim forms and overdue payment, and that an officer and billing manager's affidavit was a proper vehicle to show submission.

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, 513 (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.
King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343)The insurer's mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion.
Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50279(U))A provider cannot invoke preclusion to defeat a defense concerning unprescribed equipment when its own motion papers raise that issue.
A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))An EUO request does not toll the 30-day payment-or-denial period under the no-fault regulation governing services rendered in 2001.
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51032(U))The insurer's investigator raised a triable staged-collision coverage issue despite the provider's adequate billing proof.
Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50084(U)) FollowedThe insurer's unsworn peer review report failed to raise a triable issue against the provider's prima facie showing.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
Abraham v Country-Wide Ins. Co. (2004 NY Slip Op 50388(U))The insurer's unsworn nurses' reviews failed to raise a triable issue of medical necessity because the reviewers' qualifications were not shown.
New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626) FollowedThe insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506) FollowedThe providers' billing manager affidavit failed to establish submission of properly completed claim forms.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 50076(U)) FollowedThe insurer's affidavit and EUO evidence raised a triable coverage issue despite untimely denials of certain claims.
Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co. (2004 NY Slip Op 24505)The insurer waived the assignment defect by neither seeking additional verification nor identifying the deficiency in its denial.

Cited by

A label shows how the later decision treated this one.

RDK Med. P.C. v General Assur. Co. (2005 NY Slip Op 51281(U)) FollowedThe master arbitration award lacked competent evidence that the billed services were not rendered and was vacated.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.
A.B. Med. Servs. PLLC v Peerless Ins. Co. (2006 NY Slip Op 26318)A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials.

Similar decisions

A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51672(U))The insurer's adjuster affidavits failed to establish timely mailing of denials, precluding its defenses.
Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U))A sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.
A.B. Med. Servs. PLLC v GMAC Ins. (2005 NYSlipOp 50602(U))Transportation benefits claimed under the revised no-fault regulations are reimbursable but cannot be assigned to a transportation provider.