SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 June 19, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered June 19, 2009 as granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order. Subsequent to the entry of the June 19, 2009 order, the Civil Court entered an order dismissing the action. The dismissal of the action rendered this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 2007 NY Slip Op 50673[U], 15 Misc 3d 131[A] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: May 24, 2011

—[*1] Joseph Henig, P.C., Bellmore, N.Y. (Marc Henig of counsel), for appellant.

Rossillo & Licata, LLP, Westbury, N.Y. (John J. Rossillo of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff, NYU-Hospital for Joint Diseases, as assignee of Gudrun Cancian, appeals from an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2009, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

On August 2, 2008, Gudrun Cancian was hospitalized at NYU-Hospital for Joint Diseases (hereinafter the hospital) after being injured in an automobile accident. She had been driving a vehicle insured by the defendant, Esurance Insurance Company (hereinafter Esurance). On September 5, 2008, the hospital, as Cancian’s assignee, mailed, among other things, an NF-5 form to Esurance, seeking payment of Cancian’s hospital bill. Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ ” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996 [2009], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law [*2]based on the untimeliness of the denial of claim. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]).

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103 [b] [2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).

Accordingly, the Supreme Court properly denied the hospital’s motion for summary judgment on the complaint. Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 2, 2009. The order granted 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, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC’s standard office practices and procedures (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]). Defendant also submitted an affidavit of an employee of the office manager of the psychologist who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s no-fault specialist demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 [*2]Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claim based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 21, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 21, 2009 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,670.40.

ORDERED that the judgment is reversed, without costs, the order entered October 21, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. Plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s claims adjuster was sufficient to establish that defendant’s denial of claim forms were timely mailed in accordance with its standard office practices and procedures (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 [*2][App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant’s motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor’s shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 14, 2009, deemed from a judgment of the same court entered September 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 14, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $262.66.

ORDERED that the judgment is affirmed, without costs.

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. In support of its cross motion and in opposition to plaintiff’s motion, defendant asserted that it had timely denied plaintiff’s claims on the ground that the assignor had failed to attend duly scheduled independent medical examinations (IMEs) and that plaintiff’s motion for summary judgment was premature because plaintiff had failed to respond to defendant’s discovery demands. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, finding that since defendant’s first IME scheduling letter had been mailed prior to defendant’s receipt of plaintiff’s claim forms, it was a nullity and, as a result, defendant had failed to establish that it had sent a valid IME scheduling letter and a follow-up scheduling letter. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the Civil Court’s determination, “appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim [*2]form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff’s claim forms, the scheduling letter was not a nullity (id.).

However, since defendant’s moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor’s IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant’s reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant’s cross motion for summary judgment was properly denied.

While defendant argues that plaintiff’s motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant’s discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff’s motion for summary judgment was properly granted.

In light of the foregoing, the judgment is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: May 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Kings County (Dawn Marie Jiminez, J.), dated September 11, 2008, deemed from a judgment of the same court entered December 1, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,201.77.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered were medically necessary, as all elements of plaintiff’s case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the nonjury trial, defendant’s attorney requested an adjournment to “secure the appearance of [its] witness in this matter.” The Civil Court denied the application and issued a decision awarding judgment in defendant’s favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court’s determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant [*2]defendant an adjournment. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 23, 2011

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered May 20, 2010, which, upon an order of the same court entered May 7, 2010, granting the plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against it in the total sum of $22,446.23.

Ordered that the judgment is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff’s claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “A proper denial of claim must include the information called for in the prescribed denial of claim form” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form “was fatally defective in that it omitted numerous items of requested information, and thus was incomplete” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733 [2010]). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 [*2]AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).

For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.

The defendant’s contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]). Contrary to the defendant’s contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.

The parties’ remaining contentions are without merit or need not be reached in light of our determination. Covello, J.P., Eng, Chambers and Miller, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009, deemed from a judgment of the same court entered April 7, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,723.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. We deem defendant’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant’s papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., and Weston J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff’s assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.
Decision Date: May 12, 2011

District Court of Nassau County, First District

25241/09

Attorneys:

Plaintiff – Joseph Henig

Defendant – McDonnell & Adels, P.C.

Fred J. Hirsh, J.

The following named papers numbered 1 – 4

submitted on this motion on March 17, 2011

Papers NumberedNotice of Motion and Affidavits Annexed1-2

Order to Show Cause and Affidavits Annexed

Affirmation in Opposition3

Replying Affidavits4

This action raises questions about the proof that must be adduced by a hospital to establish a prima facie entitlement to judgment as a matter of law in an action for first party no-fault benefits.

BACKGROUND

This action combines two unrelated claims for first party no-fault benefits. The only thing these actions have in common is that Allstate Insurance Company (“Allstate”) is the no-fault carrier for both claims.

This action was commenced in Supreme Court Nassau County and was transferred to the District Court pursuant to CPLR 325(d).

A. Lenox Hill Hospital a/a/o of Eduardo Marrero v. Allstate Insurance Company

Eduardo Marrero (“Marrero”) was admitted to and received treatment at Lenox Hill Hospital (“Lenox Hill”) from July 13, 2009 through July 30, 2009. The treatment he received at Lenox Hill is alleged to be for injuries he sustained in a July 12, 2006 motor vehicle accident.

Marrero assigned his rights to receive payment of no-fault benefits for this treatment to Lenox Hill.

Lenox Hill’s third-party biller, Hospital Receivable Systems, Inc. (“HRS”) prepared and mailed the bill for treatment, the no-fault application (“NF-5”), and the assignment [*2]of benefits to Allstate Insurance Company (“Allstate”), the no-fault insurance carrier.

The hospital bill prepared and issued by Lenox Hill is in the sum of $185,332.92.

Attached to the NF-5 is a document on the letterhead of D.R.G. Master, Inc. designated as a “D.R.G. Master Output Report No Fault Version 8.3R” (“DRG”). The DRG, which is not explained, contains calculations to determine the allowable charges under the No-Fault Law (Insurance Law §5108) for the services rendered to Marrero at Lenox Hill. Based upon the calculations contained in the DRG Lenox Hill submitted a claim seeking payment of $54,167.24 for the services rendered to Marrero.

The assignment contains a notation that payment should be mailed to the Lenox Hills’ attorney at the attorney’s office address.

The aforementioned documents were mailed to Allstate by HRS by certified mail, return receipt requested. The certified mail receipt indicates the documents (NF-5, assignment, bill and DRG) were mailed to Allstate of October 8, 2009 and received by Allstate on October 12, 2009.

The affidavit of Pat Thompson (“Thompson”) of HRS addresses only the mailing of the of the documents to Allstate. This affidavit states Thompson is an employee of HRS. The affidavit does not discuss who prepared the NF-5, the hospital bill and/or the DRG, who provided HRS with the information contained in the documents and the relationship between Lenox Hill and HRS other than to state HRS is a Biller and Account Representative for Lenox Hill.

Lenox Hill alleges more than 30 days have elapsed since the bill was received and the bill has not been paid. Therefore, Lenox Hill is entitled to summary judgment.

Allstate asserts summary judgment should be denied because it timely denied this claim by mailing a denial to Lenox Hill dated October 30, 2009. The denial states the claim was denied based upon the Independent Medical Examination (“IME”) of Michael J. Katz, M.D. (“Dr. Katz) performed on 9/27/06. Dr Katz rendered a report dated 9/27/06 that stated Marrero had made a full recovery from the injuries he sustained in the July 12, 2006 motor vehicle accident. Dr. Katz report states Marrero is no longer in need of any medical care or treatment and does not need surgery.

B. Mount Sinai Hospital a/a/o Gregory Bar v. Allstate Insurance Company

Gregory Bar (“Bar”) received treatment for at Mt. Sinai Hospital (“Mt. Sinai”) on September 14-15, 2009 for injuries alleged to have been sustained in a motor vehicle accident of June 20, 2009.

Bar assigned his right to receive payment of no-fault benefits for this treatment to Mt. Sinai.

The bill issued by Mt. Sinai indicates the charges for the treatment as $4990.45.

Mt. Sinai’s third party biller, HRS, prepared and submitted the NF-5 together with a copy of the Mt. Sinai bill and assignment to Allstate for payment. The NF-5 indicates the amount due Mt. Sinai for the treatment or services provided to Bar in accordance with the no-fault schedule is $1515.96. Nothing in the papers explains the difference in the amount stated in the Mt. Sinai bill and the amount claimed to be due on the NF-5.

HRS mailed the NF-5, the assignment and the bill to Allstate on October 5, 2009 by certified mail, return receipt requested. The return receipt indicates the bill was received by Allstate on October 8, 2009. [*3]

The affidavit of Pat Thompson again addresses only the issue of mailing of the claim and other documents. The affidavit does not state who prepared the NF-5, the hospital bill or assignment or where the information contained in these documents was derived. Thompson’s affidavit states HRS is a Biller and Account Representative fo Mt. Sinai.

Mt. Sinai asserts it is entitled to summary judgment because more than 30 days have elapsed since the claim was submitted and claim has not been paid.

Allstate asserts it is not obligated to pay Mt. Sinai’s claim because on October 26, 2009 it sent a verification request to Mt. Sinai. Since Mt. Sinai did not respond to the October 26, 2009 verification request, Allstate sent a second verification request to Mt. Sinai by letter dated November 27, 2009. Allstate asserts Mt. Sinai did not respond to the follow-up verification request either.

DISCUSSION

The party moving for summary judgment must submit evidentiary proof in admissible form sufficient to establish a prima facie entitlement to judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d 557 (1980). If the party moving for summary judgment does not make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied regardless of the sufficiency of the opposition. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 AD3d 397 (2nd Dept. 2008); Widmaier v. Master Products, Mfg, 9 AD3d 362 (2nd Dept., 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept., 1999).

A claim for no-fault benefits must be paid or denied within 30 days of receipt of the claim including all verification. 11 NYCRR 3.8(a).

A hospital makes a prima facie showing of entitlement to judgment as a matter of law by submitting proof the necessary billing forms and documents have been mailed to and received by the no-fault insurer and payment is overdue. New York Hospital Medical Center of Queens v. Country Wide Ins. Co., 82 AD3d 723 (2nd Dept. 2011); Westchester Medical Center v. Countrywide Ins. Co., 45 AD3d 676 (2nd Dept. 2007); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

A medical provider must establish as part of its prima facie case the billing records submitted for payment are business records. Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD2d 644 (2nd Dept. 2008); and Dan Medical, P.C. v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 44 (App. Term 2nd & 11th Jud. Dists. 2006).

All medical providers, other than hospitals, must establish as part of their prima facie proof in an action for first party no-fault benefits the claim forms and bill are business records. See, Viviane Etienne Medical Care, P.C. v. County-Wide Ins. Co., supra – physician’s services; Lenox Hill Radiology v. New York Central Mut. Fire Ins. Co., 20 Misc 3d 851 (Dist. Ct. Nassau Co. 2008) – radiological services; Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist. Ct. Nassau Co. 2008) – chiropractic services; North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc 3d 130(A) ( App. Term 2nd & 11th Jud. Dists. 2005) – acupuncture treatment; Bayside Rehab. & Physical Therapy, P.C. v. Geico Ins. Co., [*4]24 Misc 3d 542 (Civil Ct. Richmond Co. 2009) – physical therapy treatments; Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007) – durable medical supplies.

The testimony or affidavit of a third party biller is insufficient to lay the foundation necessary to establish the claim form and billing documents are business records. Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 (2nd Dept. 2010: and Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc,3d 21 (App.Term, 2nd, 11th & 13th Jud. Dists. 2011).

The cases regarding hospital and cases regarding all other medical providers have developed on parallel tracks. The cases involving motions for summary judgment relating to hospital admissions do not address or discuss whether the hospital must establish the necessary billing documents ( NF-5, bill, assignment) are business records of the hospital.This Court can find no basis in the no-fault law or regulations why there should be a difference in the proof required of a hospital and the proof required of all other medical providers to establish a prima facie entitlement to judgment as a matter of law. A hospital should as part of its prima facie proof be required to establish the no fault claim, bill and other documentation submitted in connection with a clam to obtain payment of first party no-fault benefits is a business records.

The proof submitted in connection with this case does not establish the bill submitted by either Lenox Hill or Mt. Sinai is a business record of either hospital. William Conover, Inc. v. Waldorf, 251 AD2d 727 (3rd Dept. 1998). The affidavits of Lenox Hill and Mt. Sinai’s third party biller do not even attempt to lay the proper foundation to establish the documents submitted to Allstate were business records of either hospital. Since the plaintiffs have failed to establish a prima facie entitlement to judgment as a matter of law, their motion for summary judgment must be denied.

Allstate’s assertions that it timely denied the Lenox Hill claim and did not have to pay or deny the Mt. Sinai claim because Mt. Sinai did not respond to its request for verification are without merit.

Allstate produced a denial of the Lenox Hill bill dated October 30, 2009 in which it denies the entire claim on the grounds all no-fault benefits for orthopedic treatment had been denied effective 10/16/06 based upon the IME of Dr. Katz.

Except for limited non-precludable defenses, none of which are involved in this action, a no-fault carrier is precluded from raising defenses not asserted in timely served denial. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007). Allstate would be precluded from raising the defense the treatment provided to Marrero by Lenox Hill was not medically necessary unless it established the denial was timely mailed. Bath Medical Supply, Inc. v. Allstate Indemnity Co., 13 Misc 3d 142(A) (App. Term 2nd & 11th Jud. Dists. 2006). The no-fault insurer must establish through proof in admissible form either the actual timely, mailing of the denial or it has “…standard office practices and procedures designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees. Ins. Co., 50 AD3d 1123 (2nd Dept. 2008).

Allstate did not provide an affidavit or any other proof establishing actual mailing

of the denial to Lenox Hill. The affidavit of Allstate’s Litigation Claims Representative [*5]does not state Allstate’s standard office practices and procedures for preparing, addressing and/or mailing denials.

An insurer does not have to pay or deny a no-fault claim until it has received all timely demanded verification. Hospital for Joint Diseases v. New York Central Mut. Fire Ins. Co., 44 AD3d 903 (2nd Dept. 2007); an 11 NYCRR 65-3.8(c). The insurer has 10 business days from receipt of the claim to request verification. 11 NYCRR 65-3.5(a).

See, SZ Medical, P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52 (App.Term 2nd & 11th Jud. Dists. 2006).

Allstate acknowledged it received the bill from Mt. Sinai on October 8, 2009. It had 10 business days from October 8, 2009 to request verification. The 10th business day after to claim from Mt. Sinai was received was October 23, 2009. The first verification request was dated October 26, 2009, which is more than 10 days from receipt of the claimAdditionally, Allstate fails to submit any evidence establishing it had an office practice or procedure designed to ensure the timely mailing of verification and follow up

verification requests. St. Vincent’s Hospital of Richmond v. Government Employees Ins. Co., supra: and Sound Shore Medical Center v. New York Central Mut. Fire Ins. Co., 30 Misc 3d 131(A) (App. Term, 9th & 10th Jud. Dists. 2011).

While timely denial of the Lenox Hill claim and failure to respond to verification requests regarding the Mt. Sinai claim may be valid defenses to these claims, the affidavits submitted in opposition to plaintiff’s motion to not provide proof in evidentiary form sufficient to establish theses defenses. However, since plaintiffs failed to establish through proof in admissible form a prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment is denied.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: May 3, 2011

cc:Law Offices of Joseph Henig, P.C.

McDonnell & Adels, PLLC

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants.

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

In an action to recover no-fault benefits under a contract of insurance, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered October 1, 2010, as denied the motion of the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak, for summary judgment on the second cause of action.

Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of Chris Kang, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak (hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of law on the second cause of action by demonstrating that the necessary billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Wyckoff Hgts. Med. Ctr. v Country-Wide Ins. Co., 71 AD3d 1009, 1010 [2010], lv granted 15 NY3d 709 [2010]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether the plaintiff fully complied with the defendant’s demand for verification (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517, 518 [2008]; Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2006]). The defendant was not obligated to pay or deny the claim until all demanded verification was provided by the plaintiff (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d at 518). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the second cause of action. Dillon, J.P., Covello, Eng and Chambers, JJ., concur.