East Coast Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 26040)

Reported in New York Official Reports at East Coast Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 26040)

Chiropractic Neurodiagnostics, P.C. v Travelers Indem. Co. (2006 NY Slip Op 26049)

Reported in New York Official Reports at Chiropractic Neurodiagnostics, P.C. v Travelers Indem. Co. (2006 NY Slip Op 26049)

Chiropractic Neurodiagnostics, P.C. v Travelers Indem. Co.

2006 NY Slip Op 26049 [11 Misc 3d 644]

February 8, 2006

Kern, J.

Civil Court, New York County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Monday, May 8, 2006

[*1]

Chiropractic Neurodiagnostics, P.C., as Assignee of Jamar Brown, Plaintiff, v Travelers Indemnity Co. et al., Doing Business as The Travelers, Defendants.

Civil Court of the City of New York, New York County, February 8, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Douglas H. Sanders of counsel), for plaintiff. Moore & Associates, New York City (Rachel A. Cantillon of counsel), for defendants.

Cynthia S. Kern, J.

Plaintiff commenced the instant action to recover from defendant insurance company first-party no-fault benefits for medical services it rendered to its assignor. It moves for summary judgment on the ground that defendant failed to timely pay or deny plaintiff’s claim for no-fault benefits. Defendant argues that plaintiff is not entitled to summary judgment because it failed to submit a valid assignment of benefits form. For the reasons stated below, plaintiff’s motion for summary judgment is granted.

Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) provide that a no-fault insurer shall either pay or deny a claim for no-fault benefits within 30 days after receipt of the claim. This 30-day period may be extended if within 15 days from receipt of the initial verification forms an insurer demands additional verification of a claim. (See 11 NYCRR 65-3.5 [b].) An insurer will be precluded from raising any noncoverage defenses to an action if it does not respond to a claim within 30 days. (See Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982].) [*2]

In the instant case, defendant does not dispute that it did not deny or pay plaintiff’s claim within 30 days after receiving the claim and that it did not make any demands for additional verification within 15 days after receiving the claim. It argues, however, that plaintiff has failed to make out a prima facie case because the assignment of benefits form submitted by plaintiff was defective in that it did not indicate an assignee and it did not include the date of the accident and the date that it was executed. The First Department, Appellate Term, recently addressed this issue in Laufer v Lumberman’s Mut. Cas. Co. (9 Misc 3d 133[A], 2005 NY Slip Op 51632[U] [App Term, 1st Dept 2005]). The court found that it is not plaintiff’s burden to establish that it submitted a valid assignment of benefits form but rather it is defendant’s burden to establish that plaintiff failed to submit a valid assignment of benefits form. (Id.) The Appellate Term specifically held that the failure of defendant insurer “to object to the adequacy of plaintiff’s no-fault claim form within 10 days of receipt constituted a waiver of any defenses based thereon, including any alleged technical deficiencies in the assignment of benefits.” (Id. at *1.) The Appellate Term in Laufer did not give any explanation in its decision of what would constitute a technical defect in an assignment of benefits form. However, in reaching its decision, the court clearly relied on Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (16 AD3d 564 [2d Dept 2005]), in which the Second Department held that the defendant’s failure to object to the adequacy of plaintiff’s claim forms within 10 days of receipt constituted a waiver of any defenses based on a lack of a valid assignment of benefits. (Id.; see also A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 15316[U] [App Term, 2d & 11th Jud Dists 2005].) Based on the Appellate Term’s reliance on Nyack, which specifically held that “any” defense based on the assignment of benefits form was waived if not objected to within 10 days of receipt (16 AD3d at 565), it appears that the Appellate Term intended for the lower courts to give a broad interpretation as to what constitutes a technical defect.

Based on the foregoing, the court finds that defendant has waived any of the defects in the assignment of benefits form by not objecting to them within 10 days as all of the defects were technical. Plaintiff’s motion for summary judgment is therefore granted.Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))

Chi-Ti Acupuncture, P.C. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 50148(U))

Reported in New York Official Reports at Chi-Ti Acupuncture, P.C. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 50148(U))

[*1] Decided on February 6, 2006


PRESENT:: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-72 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered October 8, 2004. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered its assignor, plaintiff health care provider moved for summary judgment. In opposition, defendant relied on two claim denials, dated September 23, 2002 and January 28, [*2]
2003, and a chiropractor’s report of an independent medical examination (IME) which concluded that no further treatment was necessary, and alleged that requested verification had not been produced. In reply, plaintiff argued, inter alia, that as the first denial lacked most of the information an insurer is obligated to enter thereon, it amounted to no denial at all, that the purported blanket denial of coverage therein was ineffective as to claims not yet filed, that the second denial was untimely, and that the verification request, sought prior to the claims’ receipt, was ineffective to toll the statutory 30-day claim determination period. The court granted the motion, and we affirm.

First, as defendant raised no issue regarding the sufficiency of plaintiff’s moving papers (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]), we need not pass on the propriety of the court’s determination that plaintiff established its prima facie case. We agree that the September 23, 2002 claim denial was facially insufficient (e.g. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [defendant’s denial of claim form “even if timely, was fatally defective in that it omitted numerous items of requested information, and thus was incomplete”]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004] [claim denial form “fatally defective in that it failed to include a number of basic items called for in the prescribed form”]; see also Summit Psychological, P.C. v General Assur. Co., 9 Misc 3d 8, 11 [App Term, 9th & 10th Jud Dists 2005]; Shtarkman v Allstate Ins. Co., 8 Misc 3d 129[A], 2005 NY Slip Op 51028[U] [App Term, 2d & 11th Jud Dists]). Further, the denial, which asserted as the sole ground therefor the chiropractor’s independent medical examination (IME), failed to allege any facts upon which the examiner based her conclusions, and while the denial states that the IME report is attached, neither plaintiff’s nor defendant’s copy as submitted below contains such an attachment. Thus, said denial “fail[ed] to set forth with sufficient particularity the factual basis and medical rationale for [the] denial based on the lack of medical necessity” (A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]).

Defendant’s second claim denial, dated January 28, 2003, recites that on December 10, 2002, defendant received from plaintiff claims totaling the principal sum herein sought. The denial was therefore untimely, precluding its defenses, including lack of medical necessity (Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As to the various demands for verification which preceded the claim’s receipt, they failed to toll the claim determination period (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21 [App Term, 2d & 11th Jud Dists 2004] [“(T)he detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form”]). In light of the foregoing, we do not reach defendant’s remaining contentions.

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*3]
Decision Date: February 06, 2006Chiropractic Neurodiagnosis, PC v Travelers Indem. Co. (2006 NY Slip Op 50257(U))

Reported in New York Official Reports at Chiropractic Neurodiagnosis, PC v Travelers Indem. Co. (2006 NY Slip Op 50257(U))

[*1] Decided on February 5, 2006

Chiropractic Neurodiagnosis, PC, as assignee of CELINA CASTRILLON, Plaintiff, against Travelers Indemnity Co. & TRAVELERS PROPERTY CASUALTY CO. ALL D/B/A THE TRAVELERS, Defendant.

031301/05



Douglas H. Sanders, Esq.

Baker, Sanders, Barshay, Grossman, Fass,

Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

David Schierholz, Esq,

Moore & Associates

One Whitehall Street, 8th Floor

New York, NY 10004

Cynthia S. Kern, J.

Plaintiff commenced the instant action to recover from defendant insurance company first party no-fault benefits for medical supplies it rendered to its assignor after its assignor was involved in a motor vehicle accident. It moves for summary judgment on the ground that defendant did not timely pay or deny the claim. Defendant cross moves for summary judgment on the ground that the medical services provided were not medically necessary. For the reasons set forth below, plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment are denied.

Insurance Law 5106(a) and 11 NYCRR 65-3.8(c) provide that a no-fault insurer shall either pay or deny a claim for no-fault benefits within thirty days after receipt of the claim. This thirty day period may be extended if within fifteen days from receipt of the initial verification forms an insurer demands additional verification of a claim. (See 11 NYCRR 65-3.5[b]). An insurer will be precluded from raising any noncoverage defenses to an action if it does not respond to a claim within thirty days. (See Presbyterian Hospital in the City of New York v [*2]Maryland Casualty Co., 90 NY2d 274 [1997]; Central General Hospital v Chubb Group of Insurance Cos., 90 NY2d 195 [1997]; Zappone v Home Insurance Co., 55 NY2d 131 [1985]). The law is well established that lack of medical necessity is a noncoverage defense to a claim for no-fault benefits which is waived if it is not included in a timely denial. (Id.)

To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to defendant, that defendant received the claim and that defendant failed to pay or deny the claim within thirty days. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d 133(A) [App Term, 2nd & 11th Jud Dists 2003]; King’s Medical Supply Inc. v Country-Wide Ins. Co., 783 NYS2d 448 [NY City Civ Ct 2004]). Once plaintiff has established its prima facie case, the burden shifts to defendant to come forward with admissible evidence demonstrating the existence of a material issue of fact. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133).

In the instant action, plaintiff has sufficiently established its prima facie case by submitting a signed assignment of benefits form, a copy of its proof of claim form, the affidavit of a person with personal knowledge of the claim and sufficient proof that it timely mailed the claim form and that defendant did not pay or deny the claim within thirty days. Since plaintiff has established its prima facie case, the burden shifts to defendant to come forward with admissible evidence demonstrating the existence of a triable issue of fact. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133).

In the instant action, plaintiff is not entitled to summary judgment as defendant has sufficiently established a triable issue of fact as to whether it timely mailed a denial of the claim based on lack of medical necessity. Defendant is also not entitled to summary judgment as there are disputed factual issues as to whether the denial was timely sent. Proof of mailing may be established by either proof of actual mailing or an affidavit from someone with personal knowledge of the mailing or a description of the standard office practice or procedure for mailing designed to ensure that defendant’s requests were properly addressed and mailed. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133). In Hospital for Joint Diseases v Nationwide Mutual Ins. Co., the Appellate Division, Second Department specifically held that the affidavit of defendant’s claims manager who described defendant’s office practice and procedure with respect to the mailing but who had no personal knowledge of the actual mailing was sufficient to create a triable issue of fact to defeat plaintiff’s motion for summary judgment but was insufficient to entitle defendant to summary judgment on its cross motion.^[FN1] (See Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d 374 [2nd Dept 2001]. See also Hospital for Joint Diseases v New York City Transit Authority, 16 AD3d 376 [2nd Dept 2005]; King’s Medical Supply, Inc. v Hereford Insurance Co., 5 Misc 3d 55 [App Term, 9th & 10th Jud Dists 2004]). Similarly, in King’s Medical Supply, Inc. v Hereford Ins. Co., [*3]the court found that the affidavit of defendant’s claim adjuster who attested to defendant’s routine office practice and procedure was sufficient to raise a triable issue of fact as to whether the denial was timely sent so as to defeat plaintiff’s motion for summary judgment.

In the instant action, defendant has sufficiently established a triable issue of fact as to whether it timely denied plaintiff’s claims. Defendant submitted the affidavit of its claims representative Danielle Stoessel who states that the defendant received plaintiff’s claim forms on February 14, 2005 and February 17, 2005 and issued a denial dated March 8, 2005. She states that she knows the denial was mailed on March 8, 2005 based on her knowledge of the defendant’s office practices. Ms. Stoessel’s affidavit sufficiently raises a triable issue of fact as to whether defendant timely denied plaintiff’s claims. However, her affidavit is insufficient to entitle defendant to judgment as a matter of law as she has no personal knowledge that the denial was actually mailed on March 8, 2005 in accordance with defendant’s office practices and procedures. (See Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d at 374. See also Hospital for Joint Diseases v New York City Transit Authority, 16 AD3d at 376; King’s Medical Supply, Inc. v Hereford Insurance Co., 5 Misc 3d at 55). Accordingly, plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment are denied.

Plaintiff’s argument that it is entitled to summary judgment even if the denial was timely sent on the ground that defendant has failed to submit proof in admissible form concerning its claim of lack of medical necessity is without basis. Defendant has submitted a peer review report by Dr. Ciuffo with an accompanying sworn to affidavit. The other arguments made by plaintiff as to the inadequacy of the peer review report are without merit. The court need not reach the issue as to whether defendant is entitled to summary judgment on its claim that the services were not medically necessary as there are disputed factual issues as to whether the denial was timely sent.

Based on the foregoing, plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment are denied. This constitutes the decision and order of the court.

Dated:Enter: ____________________________

J.C.C.

Footnote 1:To the extent that the Appellate Term, Second Department’s decision in Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., (6 Misc 3d 137[A] [App Term, 2nd & 11th Jud Dists 2005]) holds that an affidavit by defendant’s employee describing the standard office practice or procedure for mailing is insufficient to defeat a motion for summary judgment, that decision is inconsistent with the holding of the Appellate Division in Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d 374 [2nd Dept 2001].Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

Reported in New York Official Reports at Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U))

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U))

Allstate Ins. Co. v Republic W. Ins. Co. (2006 NYSlipOp 50125(U))

Reported in New York Official Reports at Allstate Ins. Co. v Republic W. Ins. Co. (2006 NYSlipOp 50125(U))

A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2006 NY Slip Op 50139(U))

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2006 NY Slip Op 50139(U))

[*1] Decided on February 3, 2006


PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2004-1791 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered October 20, 2004. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order unanimously modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied as to plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C., and Somun [*2]
Acupuncture P.C., as assignees of Tsilya Lyukhter; as so modified, affirmed without costs.

In this action seeking to recover first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) opposed plaintiffs’ motion for summary judgment and cross-moved for summary judgment in its favor on the ground, inter alia, that plaintiffs’ assignors failed to file a timely notice of claim.

We note initially that the motion for summary judgment by plaintiff Square Synagogue Transportation Inc. was properly denied. Moreover, we find that defendant’s cross motion for summary judgment dismissing the claims as to said plaintiff was properly granted. The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs subsequent to April 5, 2002, the effective date of the revised insurance regulations which “no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11[a]; Insurance Law § 5102 [a] [1])” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]). Such costs are “nonassignable” (id.) and must be dismissed (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

For the reasons set forth herein, the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C., and Somun Acupuncture P.C., was properly denied, and defendant’s cross motion for summary judgment dismissing said plaintiffs’ claims pertaining to assignor Nataliya Romanchukevich and Alexander Krupnik was properly granted.

Article 52 of the Insurance Law establishing the MVAIC was enacted “to provide persons injured by financially irresponsible motorists a fund from which they could seek some compensation for their injuries” (Matter of Lloyd [MVAIC], 23 NY2d 478, 481 [1969]). Article 52 was also “intended to provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle” (Insurance Law § 5201 [b]). Pursuant to Insurance Law § 5221 (b) (2), “[a] qualified person who has complied with all the applicable requirements of this article [Insurance Law article 52] shall be deemed to be a covered person and shall have only such rights as a covered person may have under article fifty-one of this chapter.” Moreover, with respect to no-fault benefits, the MVAIC “shall have only those rights and obligations which are applicable to an insurer subject to article fifty-one of this chapter” (Insurance Law § 5221 [b] [3]; see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]).

The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is “a condition precedent to the right to apply for payment from [MVAIC]” (see Insurance Law § 5208 [a] [1], [3]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a “covered person,” within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists]). Defendant MVAIC’s failure to timely deny plaintiffs’ claims is of no consequence and does not preclude dismissal of plaintiffs’ causes of action based upon lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 [*3]NY2d 131 [1982]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U], supra).

MVAIC’s submissions in support of its cross motion for summary judgment made a prima facie showing that assignors Romanchukevich and Krupnik failed to timely file their notices of claim within 180 days of the accident (Insurance Law § 5208 [a] [1]; see Matter of ATM One v Landaverde, 2 NY3d 472 [2004]). Said assignors did not seek leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). The burden thus shifted to plaintiffs to show either 1) the timely filing of a notice of claim within 180 days of the accident, or, if applicable, 2) the timely filing of a notice of claim within 180 days of receipt of notice that the insurer of the person alleged to be liable for damages has disclaimed liability or denied coverage (Insurance Law § 5208 [a] [3]). Plaintiffs’ papers in opposition to defendant’s cross motion are insufficient to raise an issue of fact as to whether the notices of claim were timely filed within the prescribed statutory time periods. Having failed to satisfy a condition precedent to the right of recovery against the MVAIC, plaintiffs’ assignors were not “covered” persons within the meaning of the statute (see Insurance Law § 5221 [b] [2]). Consequently, plaintiffs are not entitled to recover on their claims for no-fault benefits pertaining to assignor Romanchukevich and Krupnik, and the court below properly granted defendant’s cross motion for summary judgment dismissing the claims with regard to them (see e.g. Ames v City of New York, 280 AD2d 625 [2001]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U], supra).

With regard to the claims pertaining to assignor Tsilya Lyukhter, there are issues of fact presented on the record as to whether said assignor filed a timely and properly completed notice of claim, and hence whether there has been compliance with a [*4]
condition precedent to commencing a suit against the MVAIC for no-fault benefits. Therefore, while plaintiffs’ motion for summary judgment as to assignor Lyukhter was properly denied, defendant’s cross motion seeking to dismiss the claims pertaining to this assignor should also have been denied.
Decision Date: February 03, 2006Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U))

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U))