Decided on July 14, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 16, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA AND SOLOMON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 9, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit by plaintiff’s owner, submitted in opposition to defendant’s motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123). In view of the foregoing, there is a triable issue of fact as to whether this action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 14, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Stern & Montana, LLP (Richard Montana, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

For the reasons stated in Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (50 Misc 3d 147[A], 2016 NY Slip Op 50319[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 14, 2017

APPEARANCES OF COUNSEL

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel) for appellant.

Korsunskiy Legal Group, P.C. (Henry R. Guindi of counsel) for respondent.

Ordered that the order is affirmed, with $25 costs.

In July 2012, plaintiff (the provider) commenced this action to recover assigned first-party no-fault benefits for medical services rendered to its assignor, who had allegedly been injured in a motor vehicle accident that had occurred on August 8, 2011. Defendant (the insurer) failed to timely answer or appear in this action, and instead commenced a declaratory judgment action in the Supreme Court, New York County, against the provider, among others, seeking a declaration that the defendants in that action were not entitled to recover no-fault benefits arising out of the August 8, 2011 motor vehicle accident.

After the insurer defaulted in the instant action, the provider moved for leave to enter a default judgment against the insurer. The Civil Court granted the motion, and a default judgment in the principal sum of $475 was entered against the insurer on March 6, 2013.^[FN*] In July 2013, the insurer moved to vacate the default judgment and to compel the provider to accept its late{**57 Misc 3d at 19} answer. The provider opposed the motion and cross-moved for “summary judgment.” The insurer did not oppose the cross motion. By order entered July 16, 2014, the Civil Court (Devin P. Cohen, J.) denied the insurer’s motion and granted, on default, the provider’s cross motion, stating that “the judgment stands.”

On July 28, 2014, the insurer moved for “summary judgment” dismissing the complaint, contending that the amount due and owing pursuant to the Civil Court judgment had been satisfied, as an order and judgment in the Supreme Court declaratory action had been entered in [*2]the insurer’s favor on July 14, 2014, declaring that the provider, among others, was not entitled to recover no-fault benefits with respect to the motor vehicle accident at issue. The order and judgment further provided that the insurer recover from the various named defendants therein, including the provider, “costs and disbursements as taxed by the Clerk in the sum of $1,125.” The insurer alleged, in its motion papers, that the judgment in this action had been fully satisfied by virtue of a “partial satisfaction,” resulting from the judgment entered in the Supreme Court declaratory judgment action. Annexed to the motion papers was a document entitled “Partial Satisfaction of Judgment” which had been executed by the insurer’s counsel on July 28, 2014, and which bore the caption of the Supreme Court action. In the alternative, the insurer’s motion sought a “satisfaction of any entered judgment” in the Civil Court, pursuant to CPLR 5020 (c). The provider opposed the insurer’s motion. By order entered April 23, 2015, from which the insurer appeals, the Civil Court denied the insurer’s motion. We affirm.

[1] We initially note that the branch of the insurer’s motion seeking “summary judgment” was inappropriate because a judgment had already been entered against the insurer. However, the insurer also sought, in the alternative, a “satisfaction of any entered judgment” in the Civil Court, based on the judgment in favor of the insurer in the Supreme Court declaratory judgment action. Although reference was made to CPLR 5020 (c) in support of this branch of the insurer’s motion, this provision has no applicability to the circumstances herein. If the insurer was actually seeking the entry of a satisfaction of judgment, the proper way to seek such relief would be by way of a motion pursuant to CPLR 5021 (a) (2). However, in support of its motion, the insurer did not demonstrate that it had filed a partial satisfaction of judgment in the Supreme Court action, in accordance with CPLR 5020 (a). Consequently,{**57 Misc 3d at 20} insofar as the insurer’s motion sought the entry of a satisfaction of judgment in the Civil Court action, such relief was properly denied by the Civil Court.

[2] Notwithstanding the foregoing, it was apparently the insurer’s objective to have a portion of the judgment in the Supreme Court declaratory judgment action fully offset the judgment obtained against it in the Civil Court action. While a court may exercise its “inherent authority to set one judgment off against another” (see Joseph Kali Corp. v A. Goldner, Inc., 49 AD3d 397, 398 [2008]; see also Scianna v Scianna, 205 AD2d 750 [1994]), the granting of such relief rests in the discretion of the court (see Beecher v Vogt Mfg. Co., 227 NY 468, 473 [1920]; Kretsch v Denofrio, 137 App Div 617, 619 [1910]). Assuming, without deciding, that the Civil Court possessed the jurisdiction to entertain such an application (cf. Stilwell v Carpenter, 62 NY 639 [1875]), the Civil Court’s determination not to set off the judgments was not an improvident exercise of discretion.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Footnotes

Footnote *:The record indicates that an amended judgment in the principal sum of $475 (and in the aggregate sum of $939.90) was entered on August 15, 2014.

SMCV 0083-16
James F. Matthews, J.

Upon the following papers numbered 1 to 10 read on this motion for an order of summary judgment dismissing the complaint ; by Notice of Motion /Order to Show Cause and supporting papers 1,2,6 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 7,9 ; Replying Affidavits and supporting papers 10 ; Filed papers; Other exhibits: 3-5,8, ;(and after hearing counsel in support of and opposed to the motion),

it is,

ORDERED that the motion by defendant for summary judgment dismissing the complaint, pursuant to CPLR 3212, is denied.

Defendant moves by summary judgment for dismissal of plaintiff’s complaint, which seeks recovery of first-party no-fault benefits in the sum of $6,651.66 for medical services rendered to plaintiff’s assignor on 09/21/15 through 10/26/15 as the result of an automobile accident which occurred on 09/03/15.

The ground for dismissal is defendant’s contention that the claims totaling $6,651.66 are not overdue, as the time to pay or deny has not commenced, due to the plaintiff’s failure to provide the information requested in its verification requests and follow-up verification requests, for each of the collective claims. Defendant claims an “exhaustive” search of its computer and paper file revealed that the sought verification information was never received by defendant.^[FN1]

In opposition to the motion, plaintiff asserts defendant has failed to demonstrate by admissible evidence, that the verification requests were timely and properly mailed to plaintiff. Also, plaintiff contends the affidavits submitted in support of defendant’s motion, have not provided a foundation for admission of its business records, a necessary part of demonstrating plaintiff’s office practice and procedures.

Plaintiff further asserts defendant has not shown “good reasons” for demanding the verifications which tolled the time from which defendant had to pay or deny the claims. Finally, plaintiff contends it responded to the verification requests of defendant by providing all the documents within its control, which it claims were already in defendant’s possession, thereby making defendant’s verification requests defective and precluding defendant from raising non-coverage defenses to plaintiff’s claims.

No-fault regulations mandate that a claim for health services expenses be submitted by written proof of claim to the insurer, no later than 45 days after the date that health services were rendered (see 11 NYCRR §65-2.4[c]). After receipt of the written proof of claim, a no-fault claim is overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1],[c]).

The thirty days may be extended where an insurer requests additional verification within 15 days of receipt of the claim (see 11 NYCRR 65-3.5[b]). If the insurer has not received a verification from the plaintiff within 30 days of the initial request, an insurer must send a follow-up verification request by phone call or mail within 10 days to the requested party (see 11 NYCRR §65-3.6[b]). This tolls the insurer’s obligation to pay or deny the claim until it receives the additional information requested (see 11 NYCRR 65-3.8[a][1]; Hospital For Joint Diseases v Traveler’s Property Casualty Ins. Co., 9 NY3d 312 [2007]).

Where a requested verification is not provided an insurer is not required to pay or deny the claim (see 11 NYCRR §65-3.8[3]; NY & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2nd Dept 2004]). However, an insurer may deny the claim after 120 calendar days if plaintiff does not provide all of the requested verification under its control or possession, or written proof providing reasonable justification for its failure to comply (see 11 NYCRR §65-3.5[o], for all claims submitted after 4/1/13). Also, an insurer’s “non-substantive, technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame” shall not “negate an applicant’s obligation to comply with the request or notice” (see 11 NYCRR §65-3.5[p], for all claims submitted after 4/1/13).

Though an insurer is entitled to request and receive information necessary to the processing and verifying of the provider’s claim (see 11 NYCRR §65-3.5[c]), the scope of the requested materials are not unlimited (see generally 11 NYCRR 65-3.6[b]). Insurance regulations require the existence of “good reasons” to demand verification (see 11 NYCRR 65-3.2[c]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2nd Dept 2007).

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts and the affidavit shall recite all the material facts and show there is no [*2]defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212[b]). A conclusory affidavit or an affidavit by an individual who lacks personal knowledge of the facts does not satisfy the proponent’s prima facie burden (see JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373 [2005]).

Here, the Court determines that defendant has failed to demonstrate a prima facie entitlement to summary judgment for dismissal with proof in admissible form sufficient to establish there are no material issues of fact (see Alvarez v Prospect Hospital, supra; Stephen Fogel Psychological, P.C. v Progressive Ins. Co., 35 AD3d 720, 721 [2nd Dept 2006]; Prime Psychological Services P.C. v Nationwide Prop. & Cas. Ins. Co.,24 Misc 3d 230, 232 [Civ Ct. Richmond Cty. 2009]).

The Court notes that the affidavit of Regina Abbatiello, No-Fault Claims Adjuster, demonstrates she was personally familiar with the standard office policy and operating procedures for the processing of no-fault claims in litigation or arbitration, including payments and denials of benefits. She states her affidavit was given after a detailed review “of all document/ correspondence and computer records maintained by Global in accordance with its standard operating procedures that are recorded/document and maintained under claim no. NF15930301.”

She further states she generated the verification requests, and follow-up additional verification requests with carbon copies, to the plaintiff assignor at the address shown on the NF-3 claim forms, seeking information, including MRI films, and the referring doctor’s report on the need for multiple MRI studies. Defendant’s records show that a verification request was sent out on 11/18/15 for each claim which had been received on 11/09/15.

Upon not receiving a response, a second verification request was sent out on 12/18/15. No response with the requested information was provided.

The Court finds the stated procedure in the instant matter is conclusory and lacking in relevant specifics to set forth the standard office practice or procedure used to ensure that items were properly addressed and mailed (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App.Term 2nd Dept 2007]). The proof establishes that verification requests are placed by the adjusters in the outgoing mail bin. However, the proof fails to sufficiently demonstrate what happens to the verification requests after placement in the mail bin. It appears that mixed mail for defendant’s office is placed in the mail bin, not just mail being sent for verification requests. Since the mail is submitted in a sealed envelope, the procedure described fails to show the contents of each envelope which is being processed (see Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2nd Dept 1996]; see also S & M Supply Inc. v GEICO Ins. Co., 2003 NY Slip Op 51192[U][App Term, 2nd & 11th Jud Dists 2003]).Consequently, it does not demonstrate that the verification requests to plaintiff were inside the envelopes taken by the defendant’s mailing clerk to the U.S. Post Office in the afternoon. In addition, there is no affidavit from an employee mail clerk attesting to the actual mailing of the verification requests. The Court also notes the lack of any certificates of mailing signed and stamped by an employee of the U.S. Postal Service to confirm the mailing of the defendant’s requests for verification, which would give rise to a rebuttable presumption of mailing by defendant (see A.B. Med. Servs. PLLC. v USAA Cas. Ins. Co., 6 Misc 3d 126[A][App. Term, 2nd & 11th Jud. Dists. 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 Ad2d 679 [2nd Dept 2001]).

Moreover, a copy of defendant’s actual letters of requests for further verification are [*3]attached as an exhibit to the moving papers. However, there is no admissible statement from any person having knowledge of the facts which would sufficiently link the standard office practices and procedures for the generating and mailing of these verifications. Nor is there any sworn statement from a person with knowledge, for admitting these letters as business records (see CPLR 4518[a]). The only connecting statement is made by the affirmations of defendant’s counsel, which have no evidentiary value, as an attorney’s affirmation not based upon personal knowledge is without probative value or evidentiary significance (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2nd Dept 2006]; see also Wesh v Laidlaw, 59 AD3d 534 [2nd Dept 2009]). Also, defendant’s attorneys have not provided a proper foundation for an opinion (see People v Goldstein, 6 NY3d 119 [2005]). In addition, an attorney’s opinion which is not based upon personal knowledge “is without evidentiary value and thus unavailing” (see Zuckerman v City of New York, supra at 563).

The Court further finds that defendant has failed to establish an objective, reasonable basis for the contents of the verification demands alleged to have been mailed to plaintiff (see 11 NYCRR 65-3.2[c]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2nd Dept 2007).

The evidence shows that verification requests were responded to by plaintiff’s attorneys, by 7 cover letters each dated 12/18/15, for the respective claim amounts of: $878.67, $878.67, $878.67, $878.67, $912.00, $959.61 and $879.73. In each letter, plaintiff’s attorneys stated:

“Enclosed please find a further response to your verification request”(emphasis added) concerning the above-referenced claim. These documents constitute all available documentation provided by the above-referenced provider. Accordingly, kindly remit payment. Failure to do so may result in litigation being commenced”

Attached to each letter was a copy of a pertinent medical report showing the results of an: MRI left wrist without contrast, MRI left hip without contrast, MRI left foot without contrast, MRI left shoulder without contrast, MRI lumbar spine without contrast, MRI thoracic spine without contrast, and MRI cervical spine without contrast.

Plaintiff has demonstrated it satisfied its duty to timely communicate with defendant, providing a statement of reasonable justification why it could not provide what further verification sought, as it had provided all of the available documents (see 11 NYCRR §65-3.5[o]; see also Dilon Med. Supply Corp. v Travelers Ins. Co.,7 Misc 3d 927, 931-932 [NY City Civ. Ct. 2005]), and it would be unable to fully satisfy the insurer’s request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 Ad2d 553 [2nd Dept 1999]). A defendant also has a duty to act, by payment or denial of the claim or request for further verification, upon receipt of plaintiff’s response to defendant’s verification request, so long as plaintiff’s documentation is arguably responsive to defendant’s verification request (see All Health Med. Care v Government Employees Ins. Co., 2 Misc 3d 907 [NY City Civ Ct. 2004]).

Here, defendant remained silent in the face of plaintiff’s verification responses, and failed to demonstrate “good reason” to support its continued verification requests, as required by 11 NYCRR 65-3.2[c]).

Moreover, there is no sworn statement from anyone with knowledge, which provides a reasonable basis for the verification demands. The affidavit of Regina Abbatiello (No-Fault Examiner) states that upon receipt of the claim with billing, “the following represent the bills that [*4]were delayed pending the receipt of additional verification.” She further states: “the additional verification requests and follow-up additional verification requests were sent to Plaintiff Assignee with appropriate carbon copies in accordance with the regulations.”

She then relates what was sought: “The information that was sought included: copies of mri films; referring doctors report on the need for multiple mri studies.” However, the foregoing statements are conclusory, and no reason is stated for the verification requests. Nor is any recognition or credit acknowledged in her affidavit for the 7 letters of 12/18/15 with MRI medical reports supplied by plaintiff in response to the verification demands.

For the foregoing reasons, the Court determines defendant has failed to establish a prima facie showing of entitlement to summary judgment dismissing the complaint as a matter of law.

Accordingly, the motion for summary judgment by defendant dismissing plaintiff’s complaint pursuant to CPLR 3212, is denied.

The foregoing constitutes the decision and order of this Court.

Dated: July 6, 2017

Footnotes

Footnote 1: The affidavit of the No-Fault Claims Adjuster fails to state who conducted the “exhaustive” search of its computer and paper file to determine that the verification information sought was never received by the defendant.

Decided on June 23, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered November 23, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

For the reasons stated in Island Life Chiropractic Pain Care, PLLC v Country Wide Ins. Co. (53 Misc 3d 131[A], 2016 NY Slip Op 51378[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.