Civil Court of the City of New York, Kings County

143763/06

Sylvia G. Ash, J.

Plaintiff a health care service provider seeks to recover no-fault benefits for supplies furnished to its assignor. Defendant contends that Plaintiff’s claim is premature because Plaintiff failed to comply with an additional verification request. Plaintiff argues that it responded to Defendant’s verification request. Defendant argues that the response failed to fully comply with the request.

There is no dispute that Plaintiff responded to the additional verification request. There is also no dispute that upon receipt, Defendant did not request any further response from Plaintiff. The issue before the Court is whether Defendant was obligated to notify Plaintiff that its response to their additional verification request was insufficient and/or incomplete. In All Health Medical Care, P.C. v. Government Employees Insurance, 2 Misc 3d 907, the Court reasoned that while “… the regulations are silent as to what, if anything, the insurance company must do if it receives insufficient verification, that it is clear that the insurance company must affirmatively act once it receives a response to its verification request.” (see also Westchester County Medical Center v. NY Central Mutual Fire Ins Co., 262 AD2d 553).

In the case at Bar, once Plaintiff submitted its response to Defendant’s additional verification request, it was then incumbent on Defendant to inform Plaintiff that said response was insufficient and/or incomplete. Any confusion or disagreement on the part of the Defendant as to what was being sought should have been addressed by further communication, not inaction (see Westchester County Medical Center v. NY Central Mutual Fire Ins Co., supra). Neither party may ignore communications from the other without risking its chance to prevail in the matter (see All Health Medical Care, P.C. v. Government Employees Insurance Co., supra).

Accordingly, Plaintiff motion is hereby granted, judgment in favor of plaintiff for $2,118.33 plus interest , attorney’s fee, costs and disbursements. [*2]

This constitute the Decision and Order of the Court.

DATED: September 15, 2008______________________________

Sylvia G. Ash, J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 4, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from offering evidence at trial in the event
of defendant’s noncompliance. Defendant opposed the motion, which was denied. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for full disclosure of all matter “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, plaintiff’s motion should have been granted to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 27, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from testifying in the event defendant fails
to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff’s motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered September 27, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from testifying in the event defendant fails to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff’s motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 26, 2007. The order denied plaintiff’s motion, inter alia, to compel the deposition of defendant.

Order reversed without costs and plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel the deposition of defendant and for a conditional order striking defendant’s answer or precluding defendant from testifying in the event defendant fails to comply. Defendant failed to oppose said motion. Accordingly, the court should have granted plaintiff’s motion to the extent of compelling defendant to appear for a deposition (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 24, 2007. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for, inter alia, summary judgment dismissing the complaint.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, 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 on the ground of lack of medical necessity, or, in the
alternative, for “Partial Summary Judgment on the issue of the Defendant’s timely denial.” The court below granted plaintiff’s motion and implicitly denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant argues that the affidavit of plaintiff’s billing manager and corporate officer, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish its prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager and corporate officer was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App [*2]Term, 2d & 11th Jud Dists 2006]), and its motion should have been denied.

With respect to defendant’s cross motion, defendant contends that its NF-10 denial of claim forms were timely since its verification requests tolled the statutory 30-day time period in which it had to pay or deny the claims. We note, however, that defendant failed to establish that it timely mailed its verification requests and denial of claim forms inasmuch as the affidavit of its litigation examiner did not sufficiently set forth defendant’s standard office practices and procedures used to ensure that said documents were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Uptodate Med. Servs., P.C. v Lubermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant’s cross motion was properly denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Diane A. Lebedeff, J.), entered August 27, 2007. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Order reversed without costs, defendant’s motion for summary judgment dismissing the complaint granted and plaintiff’s cross motion for summary judgment denied.

Plaintiff commenced this action to recover $882.39 in assigned first-party no-fault benefits for medical supplies provided to its assignor for injuries he sustained in
a motor vehicle accident on October 12, 2004. Defendant moved for summary judgment dismissing the complaint, arguing that the action was premature since it had yet to receive claims pertaining to such an accident. Plaintiff cross-moved for summary judgment. The court below granted plaintiff’s cross motion and, implicitly, denied defendant’s motion. The instant appeal by defendant ensued.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the facts and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The affidavit of plaintiff’s billing manager states that plaintiff’s assignor received medical supplies for injuries he sustained in an accident on October 12, 2004, which date corresponds to the facts alleged in the complaint. The annexed claim forms and denials, however, refer to an accident occurring on September 29, 2004. Consequently, plaintiff’s cross motion for summary judgment should have been denied. Defendant, however, established itsprima facie entitlement to summary judgment dismissing the complaint based upon the fact [*2]that it did not receive claims from plaintiff regarding an accident on October 12, 2004 involving plaintiff’s assignor. Inasmuch as plaintiff failed to rebut defendant’s showing, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 4, 2007. The order denied a motion by plaintiff for summary judgment and granted a cross motion by “Unitrin Advantage Insurance Company i/s/h/a Kemper Auto & Home Insurance Company” for summary judgment dismissing the complaint.

Order modified by providing that plaintiff’s motion for summary judgment and the cross motion for summary judgment dismissing the complaint are denied without prejudice; as so modified, affirmed without costs.

In this action, plaintiff, a provider, seeks to recover assigned first-party no-fault benefits from the named defendant, Kemper Auto & Home Insurance Company (Kemper). In June 2005, plaintiff submitted its no-fault claim to Unitrin Advantage Insurance Company (Unitrin). During the claims process, a law firm representing Kemper scheduled examinations under oath (EUOs) of the assignor’s physician. “Unitrin Kemper Auto and Home” sent plaintiff a letter stating that there would be a delay in the consideration of its claim pending the completion of the scheduled EUOs. After the physician failed to appear for the EUOs, Unitrin issued a denial of claim form in September 2005. Thereafter, plaintiff commenced the instant action against Kemper. Unitrin served and filed an answer in which it stated that it was “i/s/h/a [incorrectly sued herein as] Kemper Auto & Home Insurance Company.” After receiving the answer, plaintiff did not move to amend the caption or join Unitrin as a party; rather, it moved for summary judgment, with Kemper still listed in the caption as the lone defendant. Plaintiff’s attorney stated in the moving papers that his affirmation was “in support of the within motion seeking summary judgment against the defendant, Kemper Auto & Home Insurance Company.” Plaintiff, however, served this motion upon Unitrin’s attorneys. A cross motion for summary [*2]judgment dismissing the complaint was served and filed by “Unitrin Advantage Insurance Company i/s/h/a Kemper Auto & Home Insurance Company,” asserting, inter alia, that plaintiff had sued the wrong insurer. By order entered September 4, 2007, the court below denied plaintiff’s motion and granted Unitrin’s cross motion. The instant appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment against Kemper must be denied since its motion papers were served upon Unitrin, the action was based upon a claim submitted to Unitrin, and there has been no showing that Kemper and Unitrin are effectively a single entity. Moreover, given the fact that Unitrin is not currently a formal party to this action, and its cross motion seeks to dismiss the complaint which is asserted against a different entity, its cross motion is similarly denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 9, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, modified by granting defendant’s cross motion for summary judgment to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

In support of its cross motion for summary judgment, defendant established that it paid $297.50 towards plaintiff’s $311 claim and that it timely denied the balance of said claim on the ground that the fee charged was excessive. Since defendant did not establish as a matter of law that the fee charged was excessive, defendant was not entitled to summary judgment dismissing the balance of said claim. With respect to the claims in the sums of $848 (second cause of action) and $628 (third cause of action), defendant’s affirmed peer review report established prima facie that there was no medical necessity for the supplies provided by plaintiff, which evidence was unrebutted. As a result, defendant’s cross motion for summary judgment should have been granted to the extent of awarding it summary judgment dismissing plaintiff’s second and third causes of action (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. [*2]Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s contention, that the peer review report was inadmissible since it contained a stamped facsimile of the doctor’s signature, was raised for the first time on appeal and, thus, plaintiff waived any objection thereto (Dowling v Mosey, 32 AD3d 1190 [2006]; cf. Support Billing & Mgt. Co. v Allstate Ins. Co., 15 Misc 3d 126[A], 2007NY Slip Op 50496[U] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists 2006]). Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 27, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied plaintiff’s motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s officer and medical billing manager was insufficient to establish that said person possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-385 [2005] [“A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden”]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: September 10, 2008