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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 24, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. The appeal from the order entered September 24, 2009 brings up for review so much of an order of the same court entered September 2, 2010 as, upon granting the branch of defendant’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint and plaintiff’s prior cross motion for summary judgment, adhered to the portions of the prior order which denied defendant’s prior motion and granted the branches of plaintiff’s prior cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 (see CPLR 5517 [b]).

ORDERED that the appeal from the order entered September 24, 2009 is dismissed, as that order was superseded by the order entered September 2, 2010, made upon reargument; and it is further,

ORDERED that the order entered September 2, 2010, insofar as reviewed, is modified by [*2]providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied; as so modified, the order entered September 2, 2010, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits and asserted seven causes of action seeking to recover upon claims for $1,180, $550.44, $780.98, $489.28, $305.80, $183.48, and $122.32, respectively. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court, by order entered September 24, 2009, denied defendant’s motion and granted plaintiff’s cross motion. Thereafter, defendant moved for leave to reargue. By order entered September 2, 2010, the Civil Court granted reargument and, upon reargument, adhered to so much of the prior order as denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28.

The affidavit of defendant’s litigation examiner was insufficient to establish timely mailing of the NF-10 denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish its entitlement to summary judgment dismissing the complaint.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Avenue T MPC Corp. v Auto One Ins. Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as plaintiff failed to demonstrate that defendant had untimely denied the claims or that defendant had issued NF-10 denial of claim forms which were conclusory, vague or without merit as a matter of law, plaintiff failed to established its prima facie entitlement to summary judgment with respect to its claims for $1,180, $550.44, $780.98, and $489.28.

Accordingly, the order entered September 2, 2010, insofar as reviewed, is modified by providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

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

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for examinations under oath (EUOs) of plaintiff had been timely sent (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since defendant failed to establish that it had tolled its time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff’s principal failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment dismissing the complaint (see NYU-Hosp. for Joint Diseases v American [*2]Intl. Group, Inc., 89 AD3d 702 [2011]; Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 5, 2010, deemed from a judgment of the same court entered March 24, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the March 5, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, in effect, for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,061.

ORDERED that the judgment is reversed, with $30 costs, the order entered March 5, 2010 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered March 5, 2010, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, in effect, for summary judgment dismissing the complaint. Plaintiff’s appeal from the order is deemed to be from the judgment that was entered pursuant to the order (see CPLR 5512 [a]). [*2]

The affidavit of defendant’s claim specialist established that defendant had timely mailed requests and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim specialist was also sufficient to establish that plaintiff had failed to respond to those requests. It is noted that plaintiff never alleged that it had responded.

Consequently, the 30-day period within which defendant was required to pay or deny plaintiff’s claims did not commence to run and plaintiff’s action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Thus, plaintiff’s motion should have been denied and defendant’s cross motion should have been granted (see Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co., 35 Misc 3d 135[A], 2012 NY Slip Op 50774[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered March 5, 2010 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion, in effect, for summary judgment is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Second District (Stephen L. Ukeiley, J.), dated June 13, 2011. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff’s motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 20, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated June 21, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, 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, defendant appeals from so much of an order of the District Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by its insured who stated that plaintiff’s assignor had jumped on the hood of the insured’s car, while it was parked, and got off of the car without incident or injury. The insured, according to his sworn statement, drove away without further contact with plaintiff’s assignor. Consequently, defendant argued that plaintiff’s assignor’s alleged injuries did not arise out of an insured incident. In opposition to defendant’s cross motion, plaintiff submitted a police accident report and plaintiff’s assignor’s hospital records. According to plaintiff, these records demonstrate that its assignor was injured when defendant’s insured drove his car into plaintiff’s assignor, as reported to the police and [*2]hospital personnel by plaintiff’s assignor. The District Court found that the assignor’s hearsay statements that are contained within the records, in conjunction with the medical information, raised a triable issue of fact as to how plaintiff’s assignor was injured.

The police report offered by plaintiff did not constitute proof in admissible form, as it was not certified pursuant to CPLR 4518 (c) and no foundation establishing its authenticity and accuracy was offered (see Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2009]). In any event, “the statements in the report attributed to the [plaintiff’s assignor] constituted inadmissable hearsay” (id. at 991-992).

The hospital records that plaintiff submitted to the court purport to include a description of the alleged accident as reported to hospital staff by plaintiff’s assignor. Such statements are considered reliable only when they are relevant to diagnosis or treatment (see Williams v Alexander, 309 NY 283, 286 [1955]). Here, the hospital records do not contain any allegations that rebut the allegations contained in defendant’s insured’s sworn statement. Furthermore, plaintiff failed to lay the requisite foundation for the hospital records (see CPLR 4518 [a], [c]). Thus, contrary to the finding of the District Court, even assuming the hospital records were admissible at all, and therefore could be used as proof that plaintiff’s assignor was injured by a motor vehicle, they still did not raise a triable issue of fact as to whether defendant’s insured was involved, thereby triggering defendant’s liability.

Since defendant demonstrated that the injuries in question did not arise out of an insured incident, and plaintiff failed to raise a triable issue of fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 69 AD3d 923 [2010]; Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 20, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), dated October 6, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff’s motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur. [*2]
Decision Date: December 20, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, December 18, 2012

APPEARANCES OF COUNSEL

Joseph Henig, P.C., Bellmore (Mark A. Green of counsel), for appellant. Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for respondent.

{**38 Misc 3d at 42} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, we find that the District Court properly denied plaintiff’s motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).

A plaintiff seeking to recover for no-fault benefits must submit proof of the fact and the amount of the loss sustained, i.e., that health care services or supplies were provided and the amount thereof (see Insurance Law § 5106 [a]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). In this case, plaintiff submitted an NF-5, UB-04 and DRG master output report in support of its motion for summary judgment. However, in order for such documents to constitute prima facie proof of the fact and the amount of the loss sustained, plaintiff would have had to demonstrate that such documents were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App{**38 Misc 3d at 43} Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see generally Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Plaintiff failed to do so.

Plaintiff’s argument that hospitals should not be held to the same standards of proof as other healthcare providers, because hospitals are required to use a different claim form (an NF-4 or NF-5 rather than an NF-3), is without merit. The NF-3 (verification of treatment by [*2]attending physician or other provider of health service), NF-4 (verification of hospital treatment) and NF-5 (hospital facility form) are all prescribed by the no-fault regulations (Insurance Department Regulations [11 NYCRR] Appendix 13), and one is not inherently more reliable than the others. The fact that a certain form was used to submit a claim to an insurer is irrelevant to the question of whether the health care provider demonstrated to the court that it is entitled to recover no-fault benefits.

We recognize that CPLR 4518 (b) allows hospital records to be used as prima facie proof of the facts contained in those records. However, CPLR 4518 (b) does not apply to “any action instituted by or on behalf of a hospital to recover payment . . . for services rendered by or in such hospital.” Even assuming, without deciding, that a hospital’s records could be used by the plaintiff hospital in an assigned first-party no-fault case, pursuant to CPLR 4518 (b), under the theory that the hospital is suing as the assignee of a patient seeking to recover benefits from an insurance company, and not on its own behalf, such documents must, in any event, “bear[ ] a certification by the head of the hospital or by a responsible employee in the controller’s or accounting office that the bill is correct, that each of the items was necessarily supplied and that the amount charged is reasonable.” No such certification was provided here, nor did plaintiff submit an affidavit of a hospital employee attesting to the truth of any of the contents of the records submitted by plaintiff. Instead, the only sworn statements submitted by plaintiff were made by plaintiff’s attorney and by an employee of a third-party billing company, neither of whom claimed any knowledge as to the truth of the contents of the records.

Finally, we note that the cases cited by plaintiff (e.g. Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]), for the proposition that hospitals are not required to submit proof of the fact and the amount of the loss sustained to the court in order to demonstrate their entitlement to no-fault{**38 Misc 3d at 44} benefits, do not impact our decision in this case. In those cases, there is no indication that the defendants had ever objected to the plaintiffs’ prima facie showing on the ground that those plaintiffs had failed to submit such proof. Thus, plaintiff has not demonstrated that any appellate court in New York has been presented with the question of whether a plaintiff hospital is required to offer proof of the fact and the amount of the loss sustained in order to recover no-fault benefits in court and, upon considering that question, held that the hospital is not required to offer such proof. The Appellate Division has specifically held, twice, that a health care provider has not demonstrated its entitlement to recover no-fault benefits after finding that the provider’s claim forms were inadmissible pursuant to CPLR 4518 (a) (see Matter of Carothers, 79 AD3d 864; Art of Healing Medicine, P.C., 55 AD3d 644), and plaintiff has not provided a compelling reason to distinguish the instant case from those cases.

Accordingly, the order, insofar as appealed from, is affirmed.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint.

Molia, J.P., Iannacci and LaSalle, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 2, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion, defendant submitted, among other things, a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the chiropractic services rendered. In opposition to the motion, plaintiff submitted an affidavit by its chiropractor which was sufficient to demonstrate that there was an issue of fact as to the medical necessity of the services at issue (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 13, 2012

[*1]

District Court of Nassau County, First District, December 12, 2012

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, LLP, Great Neck, for plaintiff. Richard T. Lau & Associates, Jericho, for defendant.

{**38 Misc 3d at 751} OPINION OF THE COURT

Michael A. Ciaffa, J.

Plaintiff moves for summary judgment upon its claim for no-fault benefits, and defendant cross-moves for summary judgment dismissing the claim. For the reasons stated below, plaintiff’s motion is denied, the cross motion is granted, and the action is dismissed as premature.

The principal issue presented by the motion and cross motion concerns defendant’s failure to give notice to plaintiff’s attorneys that it was requesting verification of the claim from the plaintiff medical provider. Defendant’s proof establishes that it mailed timely verification requests directly to plaintiff, but received neither the requested material nor any response. In opposing defendant’s argument that plaintiff’s lawsuit should be dismissed as premature, plaintiff’s papers contend that defendant’s verification letters should have been sent to plaintiff’s attorneys pursuant to the no-fault regulations and that firm’s explicit written request. Although plaintiff’s contention has merit, defendant’s failure to send its verification requests to plaintiff’s attorneys, by itself, is legally inconsequential. Most importantly, plaintiff does not dispute that it received defendant’s verification letters. In the absence of a prompt objection by plaintiff to the misdirected [*2]verification letters, plaintiff is in no position to complain about defendant’s mistake. Its action, therefore, was brought prematurely, and must be dismissed.

The facts relevant to the motion and cross motion are undisputed. By letter dated October 19, 2011, plaintiff submitted a timely claim for no-fault benefits to defendant through a letter from its attorneys, Israel, Israel & Purdy, LLP (IIP). The cover letter from IIP stated, in pertinent part: “in the event you require additional verification of the claim or proof of loss, then your request for the same, including medical records, should be forwarded to us, as Attorneys, and we will in turn arrange for the transmittal to you.”

Plaintiff’s claim was received at defendant’s Ballston Spa office no later than October 21, 2011. Following receipt of the claim, defendant timely mailed a verification request to plaintiff on November 3, 2011, seeking submission of a “[l]etter of medical necessity.” For reasons not explained, defendant failed to mail a copy of the letter to IIP. Instead, copies were sent only to plaintiff’s assignor (Maria Silva) and her attorneys.

When no response was received within the following 30 days, defendant sent a second verification request to plaintiff on{**38 Misc 3d at 752} December 16, 2011. Again, defendant failed to send a copy of the letter to IIP. Again, copies were sent only to plaintiff’s assignor and her attorneys.

The court begins its analysis by assuming that no-fault insurers must ordinarily respect a provider’s decision to pursue a claim through communications from and to its lawyers. Once an insurer is advised that it should communicate directly with a provider’s attorneys, any such communications should be directed to those attorneys. Lawyers for parties are ethically bound to observe such a rule. (See Rules of Professional Conduct [22 NYCRR 1200.0] rule 4.2 [a] [“a lawyer shall not communicate . . . with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law”].) So, too, a debt collector who knows that a consumer is represented by an attorney is “generally obligated to communicate with the consumer only through the attorney.” (See Rosario v American Collective Counseling Servs., Inc., 2001 WL 1045585, *1, 2001 US Dist LEXIS 13455, *3-4 [MD Fla 2001], citing 15 USC § 1692c [a] [2].) “In such situations, a notice to counsel satisfies the requirement that notice be sent to the consumer.” (Id., 2001 WL 1045585, *1, 2001 US Dist LEXIS 13455, *4.)

Similarly, in matters involving insurance claims, where the insurer has been apprised that a claimant has counsel, appellate court decisions hold that statutory notices to the claimant may properly be sent to “the claimant’s attorney, rather than [to] the claimant personally.” (See Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124, 127 [1st Dept 1999]; see also St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2d Dept 2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2d Dept 2002]; New York Mut. Underwriters v O’Connor, 105 AD2d 994, 995 [3d Dept 1984].) Indeed, as the court recognized in Lenox Hill Radiology & MIA P.C. v Global Liberty Ins. (20 Misc 3d 434, 438 [Civ Ct, NY County 2008]), “sending [a] verification request to the attorneys [of the medical provider] . . . [is] notice to the principal-provider as a matter of law.” [*3]

In view of the foregoing, in cases where a no-fault claimant chooses to have its claim presented thru counsel, and designates counsel as its agent for receipt of requests for verification, a no-fault insurer should scrupulously respect a claimant or provider’s wish that all such communications be sent to its attorneys for their response. Although the processing of a no-fault claim{**38 Misc 3d at 753} is not supposed to be adversarial (see 11 NYCRR 65-3.2 [b]), practical realities require acknowledgment that attorneys oversee or are involved in each and every step of the process. When such attorneys are designated as a provider’s agent at the claims stage, an insurer ought to honor that designation in the course of processing the provider’s claim for no-fault benefits. Absent circumstances where a statute or regulation requires otherwise, the court sees no reason why an insurer should not communicate directly with counsel for the provider.

Nothing in the no-fault regulations requires a different conclusion. Under the provisions which specifically govern verification requests, an insurer seeking verification must “follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail.” (11 NYCRR 65-3.6 [b].) However, the regulation further provides: “[a]t the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (Emphasis added.)

Plaintiff’s counsel correctly maintains that her office should be deemed “the applicant’s attorney” for the purpose of receiving notice of any missing verification as required by this regulation. Pursuant to the currently prevailing case law interpretations of section 65-3.6 (b), a provider seeking payment through an assignment is deemed the “applicant.” (See Cambridge Med., P.C. v Progressive Cas. Ins. Co., 29 Misc 3d 186, 188-189 [Civ Ct, Richmond County 2010], discussing East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202 [2d Dept 2009], and Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept 2007].) Moreover, defendant cannot dispute that it was aware, from IIP’s initial claim letter, that IIP was representing plaintiff in connection with the instant claim. Indeed, IIP clearly placed the insurer on notice that the provider’s law firm was acting as its agent for the receipt of all correspondence concerning the bills at issue. (See Cambridge Med., P.C. v Progressive Cas. Ins. Co., 29 Misc 3d at 189.) Therefore, at a very minimum, defendant should have sent written notice of defendant’s follow-up verification request to both plaintiff and IIP, in accordance with section 65-3.6 (b).

Instead of doing so, defendant merely sent copies of its letters to plaintiff’s assignor and her attorney. Under the circumstances at bar, the insurer’s failure to notify IIP of the request for{**38 Misc 3d at 754} verification is inexcusable. At least with respect to the follow-up notice, that failure violated the no-fault regulations governing claim verification.

However, it does not necessarily follow that such a mistake requires a decision granting plaintiff’s motion and denying defendant’s cross motion. As a general rule, when notice is given to a person’s designated agent, that notice is typically imputed to the [*4]agent’s principal. The premise for the general rule is that the agent owes a duty to his principal to forward the notice. While this no-fault matter presents the opposite situation, where notice was given to the principal not the agent, the same general rules should apply. Just as an agent is duty bound to forward notices to his principal, the principal has an implied duty to forward notices to its agent in cases where the principal intends to have an agent act on its behalf. “Every contract of agency carries with it an implied obligation on the part of the principal to do nothing that would thwart the effectiveness of the agency.” (Sidella Export-Import Corp. v Rosen, 273 App Div 490, 492 [1st Dept 1948].) “A party cannot insist upon a condition precedent . . . when its nonperformance has been caused by himself.” (Id.)

In the instant case, the insurer established that its verification requests were timely mailed to the provider, and the provider does not dispute receiving them. Appellate court decisions make plain that “further communication, not inaction” is necessary to preserve objections to arguably improper insurer verification requests. (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [2d Dept 1999]; see also St. Vincent’s Hosp. v American Tr. Ins. Co., 299 AD2d at 340; New York Hosp. v State Farm Mut. Auto Ins. Co., 293 AD2d at 590-591; accord Five Boro Psychological & Licensed Master Social Work Servs., PLLC v GEICO Gen. Ins. Co., 38 Misc 3d 354 [Civ Ct, Kings County 2012]; Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 1228[A], 2010 NY Slip Op 50950[U] [Civ Ct, Kings County 2010].) The same should hold true here.

Plaintiff, as an applicant for no-fault benefits seeking payment for its services, knew or should have known that it needed to provide routine verification, in the form of a letter of medical necessity, before its claim would be processed by defendant. Although it apparently received two written requests for such verification, plaintiff never reminded defendant that the notices should have gone to IIP. If plaintiff forwarded the verification{**38 Misc 3d at 755} notices to IIP, that firm did nothing, either. Both had the opportunity to act. Neither raised a timely objection to the requests. The verification was never provided. The claim remained premature. (See e.g. Alev Med. Supply, Inc. v Eveready Ins. Co., 37 Misc 3d 137[A], 2012 NY Slip Op 52184[U] [App Term, 2d Dept,2d, 11th &13th Jud Dists 2012].) Notwithstanding defendant’s failure to also send copies of the verification requests to IIP, plaintiff, not defendant, bears the primary blame for its own predicament.

In closing, under current case law precedent, medical providers have a duty to promptly respond to verification requests which are arguably improper. As appellate courts have noted in other contexts,

“[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests.” (Triangle R Inc. v Praetorian Ins. Co., 30 Misc 3d 129[A], 2010 NY Slip Op 52294[U], *2 [App Term, 1st Dept 2010], quoting Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 865 [2d Dept 2009].)

[*5]Consequently, the insurer’s failure to send copies of its requests to the provider’s attorneys is immaterial. The action is premature, and accordingly must be dismissed.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 17, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 17, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65—1.1; 65—3.3[d],[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), plaintiff failed to raise a triable issue of fact. The conclusory affidavit of plaintiff’s employee, who had no personal knowledge of the date the claim was mailed, and described in only the most general terms her offices mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Nor did the certified mail receipt relied upon by plaintiff raise a triable issue as to actual mailing (see Mid City Construction Co., Inc. v Sirius America Insurance Company, 70 AD3d 789, 790 [2010]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]), especially given that the receipt contained two different postmarks and a file number that did not correspond to plaintiff’s claim. We also note that plaintiff submitted no proof of “reasonable justification” for the failure to provide timely notice of the claim (see 11 NYCRR 65-3.3[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 592).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: December 11, 2012