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 (George J. Silver, J.), entered September 11, 2008. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

ORDERED that the appeal is stricken from the general calendar.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. While said motions were pending in the Civil Court, the Supreme Court, Queens County (James J. Golia, J.), in a declaratory judgment action brought by the instant defendant against, among others, the instant plaintiff and plaintiff’s assignor, issued a preliminary injunction staying “all pending and future actions” in “New York Civil and District Courts” involving, inter alia, said plaintiff and assignor. Thereafter, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. This appeal by defendant ensued. In light of the preliminary injunction issued by the Supreme Court, the parties herein were foreclosed from proceeding any further in this action. Accordingly, the appeal could not properly be perfected and must be stricken from the general calendar.

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

Golia, J., taking no part. [*2]
Decision Date: January 22, 2010

Civil Court of the City of New York, Kings County

034843/08

Sylvain Jakobavics, Esq.

Attorney for Plaintiff

2630 Ocean Avenue

Suite A-3

Brooklyn, NY 11229

718.332.0577

James Hiebler & Assoc.

Attorney for Defendant

20 Main Street

Hempstead, NY 11550

516.564.8000

Johnny L. Baynes, J.

Plaintiff in this application for first party no-fault benefits pursuant to Insurance Law § 5106[a], See also, Mary Immaculate Hospital. v. Allstate Ins. Co., 5 AD3d 742 [2004], moves for summary judgment in the amount of $729.71 for medical services rendered.

A party moving for summary judgment must show, by evidence in admissible form, that there are no material issues of fact in controversy and that they are entitled to judgment as a [*2]matter of law. Once that showing is made, the burden shifts to the opponent of the motion for summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy which require a trial. Alvarez v. Prospect Hospital, 68 NY2d320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851(1985).

In the instant matter, plaintiff has shown, by admissible evidence, that it was assigned the instant claim and submitted same to defendant and that said claim was not paid within thirty days of its receipt by defendant. The Affidavit of Alla Noginsky, the owner of plaintiff facility, is detailed, clear and sets forth with specificity the basis for her knowledge of the procedures with respect to the instant claim, the manner of gathering and recording the billing information and the specifics as to the mailing of the bill and NF-3 claim form to the defendant.

Moreover, the Affidavit of Donna King, defendant’s employee, a no fault examiner, acknowledges that the NF-10 submitted with the defendant’s motion papers is correct. That NF-10 denial of claim form states clearly that the denial was not issued with respect to the bills, received “11/26/06-2/16/07”, until April 10, 2007, in clear violation of the requirement of Insurance Law § 5106[a] that the denial be issued within thirty (30) days of their receipt by defendant.

The NF-10 describes the basis for the denial as follows:

AS PER CARRIER’S INVESTIGATION A PORTION OF

YOUR BILL WILL NOT BE HONORED ACCORDING TO

THE CLAIMANT’S RECORDED STATEMENT THE

ACUPUNCTURE SESSIONS LASTED15 MINUTES.

CARRIER WAS BILLED AN ADDITIONAL 15 MINUTES

WITH NEEDLE REINSURCION [sic] WHICH WAS NOT

RENDERED. AS PER DENIAL OF 12/11/06 NO FURTHER

TREATMENT WILL BE HONORED. CONSULTANT

REPORT PREVIOUSLY SENT.

Defendant’s excuse for the delay in denying the claim is that there was a “pending fraud investigation”. There is no indication that any verification request was ever sent to plaintiff after defendant received the bills. Such a request would have served to toll the time to deny the claim. Moreover, the report of Special Investigations Unit [hereinafter “SIU”] Investigator, Charles Rorke, is unsworn and not in admissible form as required by CPLR § 3212. However, even if it were admissible, Mr. Rorke concluded that “there is no evidence that [the accident forming the basis of the claim] was caused or staged”.

Defendant correctly states that “a no fault insurer is not precluded from asserting a defense of fraud, despite the insurer’s untimely denial of the claim”. Central Gen. Hosp v. Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Progressive Northwestern Ins Co. V Van Dina, 282 Ad2d 269 [2d Dept 2001]. However, no such tolling provision applies with respect to provider fraud, which seemingly forms the basis for defendant’s denial. Fair Price Medical Supply Corp v. Travelers Indemnity Co., 10 NY3d 556, 860 NYS2d 471 [2008]. [*3]

Defendant urges that the Court find there is an issue of fact as to fraud and set the matter down for trial on that issue. The Court declines to do so. Even if there were admissible evidence of provider fraud, as set forth above, such evidence would not excuse defendant’s untimely denial of the within claims.

The Court finds that plaintiff has met its prima facie burden of proving mailing. Defendant is, however, unable to prove timely denial.

Wherefore, the Clerk of Court is directed to enter judgment in favor of plaintiff in the sum of $729.71, together with statutory costs, interest and attorneys fees.

The foregoing Constitutes the Decision and Order of the Court.

Dated: January 22, 2010

____________________________________

JOHNNY L. BAYNES, JCC

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: January 14, 2010

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 (Robin S. Garson, J.), entered August 8, 2008, deemed in part from a judgment of said court entered November 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the August 8, 2008 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action and denied so much of defendant’s cross motion as sought summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,113.03. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s first, second and third causes of action.

ORDERED that the judgment is affirmed without costs; and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s second and third causes of action is granted; as so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action, and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered awarding plaintiff the principal sum of $1,113.03 on its fourth through tenth causes of action.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]the mailing of the claims in question since he stated that he had personally mailed the claims (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, insofar as is relevant to this appeal by defendant, plaintiff made out its prima facie entitlement to summary judgment.

While defendant argues that plaintiff was not entitled to summary judgment upon its fourth through tenth causes of action and that defendant was entitled to summary judgment dismissing said causes of action because defendant had timely denied the underlying claims based on the assignor’s failure to appear for independent medical examinations, defendant’s motion papers failed to establish that the assignor failed to appear for such examinations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to demonstrate its entitlement to judgment upon said causes of action or even to raise a triable issue of fact with respect thereto. Accordingly, plaintiff was entitled to summary judgment upon these causes of action (id.).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action, defendant established that the claims at issue in said causes of action were timely denied on the ground of lack of medical necessity based upon an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for such medical services (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing said causes of action, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since plaintiff failed to do so, defendant was entitled to summary judgment dismissing plaintiff’s second and third causes of action (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Defendant also contends that the Civil Court should have granted it summary judgment dismissing plaintiff’s first cause of action because defendant established that it had timely denied the claim on the ground that the fees charged were excessive and not in accordance with the workers’ compensation fee schedule. While defendant is not precluded from asserting said defense (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]), defendant failed to establish that the fees charged were in fact excessive. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action.

Accordingly, the judgment in favor of plaintiff is affirmed and the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary
judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s second and third causes of action.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 12, 2010

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 7, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 7, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $656.91.

ORDERED that the judgment is reversed without costs, the order entered October 7, 2008 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground
that it had properly reimbursed plaintiff for licensed acupuncture services at the rate consistent with the amount paid for acupuncture services provided by licensed chiropractors. The Civil Court granted plaintiff’s motion, holding that defendant had failed to demonstrate that it had issued timely denials of the claims. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Defendant established through the affidavit of its claims division employee that it had timely mailed the denial of claim forms to plaintiff, by setting forth the office practices or procedures used to ensure that such items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]).

For the reasons stated in Great Wall Acupuncture, P.C. v GEICO Ins. Co. (___ Misc 3d ___, 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

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 September 22, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $292.94.

ORDERED that the judgment is reversed without costs, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and
defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it had been commenced before defendant had received responses to its outstanding verification requests. By order entered September 22, 2008, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from said order is deemed to be from the judgment which was subsequently entered pursuant thereto (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim representative sufficiently established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the [*2]commencement of the action, with the verification, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; 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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]).

Accordingly, the judgment is reversed, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

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 8, 2008. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third causes of action. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $708.37 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s
second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s second and third causes of action. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claims on the grounds that the supplies provided were medically unnecessary and that the fees charged by plaintiff were excessive (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to the branch of plaintiff’s [*2]motion for summary judgment upon plaintiff’s second cause of action, defendant raised a triable issue of fact by annexing an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that the medical supplies at issue in said cause of action were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, in opposition to the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s third cause of action, defendant established that there was an issue of fact as to whether the fees charged by plaintiff were excessive.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

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 (Sylvia G. Ash, J.), entered April 23, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered August 30, 2007 which awarded plaintiff the principal sum of $791.92 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment is vacated, 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 appeals, as limited by its brief, from so much of an order of the Civil Court entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to said portion of the order (see CPLR 5501 [c]).

Plaintiff’s cross motion for summary judgment was supported by an affidavit of an employee of a third-party billing company who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the annexed documents were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Psychology YM, P.C. v Nationwide Mut. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51634[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is reversed, so much of the April 23, 2007 order as granted plaintiff’s cross motion for summary judgment is vacated [*2]and plaintiff’s cross motion for summary judgment is denied.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Julia I. Rodriguez, J.), entered on or about June 20, 2008, reversed, with $30 costs, complaint reinstated, and judgment directed in favor of plaintiff in the principal sum of $3,072.08.

Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411; see also Lumberman’s Mut. Cas. Co. v Temco Serv. Indus., 209 AD2d 296 [1994]).

With respect to the merits of plaintiff’s action, as Civil Court properly recognized, plaintiff established a prima facie case to recover the first-party no-fault benefits it sought in its complaint. Since defendant failed to adduce any evidence on the issue of the medical necessity of the services rendered to plaintiff’s assignor, defendant’s only purported defense at trial, we direct judgment in plaintiff’s favor for the principal amount sought in the complaint.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 2010

Civil Court of the City of New York, Richmond County

19752/07

Defendant:

Law Offices of Teresa M. Spina

GEICO Insurance Co.

170 Froehlich Farm Blvd

Woodbury NY 11797

(516) 496-5822

Plaintiff:

Joseph Sporacio, P.C., Attorney for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

(718) 966-0055

Katherine A. Levine, J.

The primary issue presented at trial was whether plaintiff Healthcare Associates in Medicine (“plaintiff” or “Health Care”) violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations – 11 NYCRR 65 – 1.1 – by failing to submit its proof of claim for services to defendant Geico Insurance (“defendant” or “Geico”) within 45 days from the date services were rendered. Since the two aforementioned cases presented the same issue, they were consolidated for trial. [*2]

Defendant moved for a directed verdict after plaintiff presented the testimony of Ms. Sparta, its collection account representative. Defendant contended that Sparta failed to establish that either of the assignor’s bills were sent within 45 days since she admitted on cross that she did not know whether or when the bills were actually sent out. She did not generate the bill and did not see the representative responsible for billing GEICO either generate the bills or mail them or give them to the postal clerk. Rather, it is her responsibility to supervise the assigned representatives, including “Mary Ann” who was responsible for GEICO billing. Mary Ann was supposed to take the information from the patient and generate a bill after the patient was seen and send out the bill was supposed to generate a visit for the day, attach it to the bill and send it out. She “hopes and assumes” that Maryann took the bill and put it into the mail room.

Due to the computer program utilized by plaintiff, she cannot print out a hard copy of the bill for the first date of service of a particular assignor since each time a new bill is generated the computer overrides the original bill that was created. Therefore the dates on the claim forms submitted by plaintiff (plaintiff’s “1” and “3”) are not the dates for the first bills that were generated for the assignors but rather the dates for the last bills that were generated. There is no proof of mailing for the bills containing the original dates of service and nothing on the bills that would show that they were mailed. However, the computer also prints out a claims history report ( plaintiff’s “2” and “4”) which chronologically lists from the bottom upwards the dates that the bills were generated. Sparta claims that based upon the claims history forms, the bill for the first date of service on Varallo- April 7, 2006 – was generated on April 12, 2006 and that the girls should have mailed the bill out that day. With respect to assignor Galanti, the bill for the first date of service on May 16, 2006 was generated was May 17, 2006.

Due to the alleged deficiency in Sparta’s testimony as well as deficiencies in the documentary evidence, GEICO contends that it is not necessary for it to present its own witness to establish its receipt of the bills or its generation of timely denials. Despite this contention, Geico asserts in its brief that it received the bill for the date of service of April 7, 2006 (Varallo) on June 26, 2006 and timely denied the bill on June June 29, 2006. Geico also asserts that it received the bill for the date of service of May 16, 2006 (Galanti) on July 7, 2006 and timely denied it on July 20, 2006. However, these are merely assertions; Geico did not place its denials in evidence.

Curiously, Geico does not dispute that plaintiff’s witness “adequately testified that she had personal knowledge of the mailing procedures sufficient to raise a presumption that the bill(s) were mailed to Defendant.” Therefore defendant does not dispute that but for the 45 day issue, plaintiff would have proven its prima facie case. Rather defendant challenges plaintiff’s ability, on its prima facie case, to submit both testimony and evidentiary documentation to establish that the bills were mailed within the mandatory statutory time period of 45 days. In essence Geico contends that it would be redundant and a waste of time for it to have to place its claims examiner on the stand to establish that the bill was mailed and received beyond the 45 [*3]days since plaintiff would not be able, based upon Sparta’s testimony in plaintiff’s case, to rebut its testimony and documentary evidence.

Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002, are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days (11 N.Y.C.R.R. 65.12 [e] (“old regulations)) to 45 days (11 N.Y.C.R.R. § 65-1.1 [b] (“new regulations.”)). See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130(A), 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). Where one proof of claim is submitted for several medical treatments, the 45 day period commences the day after the first treatment is rendered. SZ Medical P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term., 2nd & 11th Jud. Dists. 2006), citing Informal Opinion, New York State Insurance Department, June 30, 2003.

Insurance Law § 3425 (a) (8) sets forth that the policy period for newly issued and renewed automobile insurance policies is one year. See also Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 (2001). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003. S & M Supply v State Farm Mut. Auto. Ins. Co., supra . When an automobile policy is issued after that date, the defendant insurer need not prove that the policy at issued contained such an endorsement, “(s)ince an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [a][8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]”. Eagle Chiropractic, supra . See also, Lenox Hill Radiology and MIA, P.C. v. Regina Alsis, 2009 NY Slip Op. 51966U, 2009 NY Misc. LEXIS 2471 (Civil Ct., Bronx Co. 2009).

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider’s untimely submission of claim if it does not issue a timely denial of claim. Rockman v. Clarendon Nat. Ins. Co., supra , citing Mid Atlantic Medical P.C. v. Travelers Indemnity Co., 12 Misc 3d 147(A), 824 NYS2d 769 (App. Term, 1st Dept. 2006). Pursuant to both the Insurance

Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. Presbyterian Hosp. v. Md. Cas. Co., 90 NY2d 274, 278 (1997), citing Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). See, Bayside Rehab & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542 (Civil Ct., Richmond CO. 2009). [*4]

Thus, in Montefiore Med. Ctr. v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354 ( 2d Dept. 2004), the court found that despite the fact that the medical service provider had submitted a proof of claim that was incomplete and untimely, the plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period NYCRR 651.1(d) ( new regulation). St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 (2d Dept. 1994).However, since the defendant offered sufficient evidence to raise a triable issue of fact whether as to whether the plaintiff’s claim was denied as untimely, summary judgment should not have been granted to the plaintiff. See also, Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op 52143U, 17 Misc 3d 1125A (Civil Ct., Kings Co. 2007) (parties stipulated at outset of trial that plaintiff’s bills were submitted beyond 45 days after services were rendered, the defendant submitted a timely denial, and the plaintiff’s prima facie case was established).

GEICO submits that it need not present a witness to establish that it timely denied the bills because plaintiff failed, in its prima facie case, to establish that it mailed the bills within the statutory 45 day period and failed to present any testimony as whether it had a reasonable justification for the delay in mailing the bills. However, since GEICO concedes that plaintiff made out its prima facie case of generating and then mailing a bill, GEICO cannot then attack the validity of the very bills it concedes were properly mailed and generated by arguing that they do not contain proof that they were mailed within 45 days. The fact that a plaintiff’s bill may ultimately be deemed to be untimely does not create an obligation upon the plaintiff, in the first instance, to prove timeliness as part of its prima facie. Rather, precedent requires that an insurance company establish the untimeliness of the bills by putting in its timely denials which contain the dates that the bills were received. GEICO may be able to prevail if the documents it puts into evidence substantiate its assertions, in its brief, that it received both claims beyond the 45 day manage.

As such, defendant’s motion for judgment as a matter of law and for the dismissal of the case is denied. The parties shall contact the court within 20 days of receipt of this decision to set a trial date if they cannot resolve these two cases based upon the afore stated decision. A trial shall be held to give GEICO an opportunity to present its defense.

The foregoing constitutes the Decision and Order of the Court.

Dated: January 6, 2010______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________ [*5]

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