Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NYSlipOp 51181(U))
| Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. |
| 2005 NYSlipOp 51181(U) |
| Decided on July 21, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
2004-1037 K C NO. 2004-1037 K C
against
Allstate Insurance Company, Respondent.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (D. Kurtz, J.), entered on June 4, 2004, as granted its motion for summary judgment to the extent of ordering an assessment of damages.
Order modified by providing that plaintiff’s motion for summary judgment is granted, by deleting therefrom the provision requiring an assessment of damages and by remanding the matter to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.
In awarding summary judgment in favor of plaintiff, the court erroneously set the
matter down for an assessment of damages. Inasmuch as plaintiff made out a prima facie case by the submission of proof of the claim and the amount of the loss sustained (Insurance Law § 5106), and the calculation of interest and attorney’s fees is prescribed by statute (Insurance Law § 5106 [a]) and the regulations promulgated thereunder (11 NYCRR 65-3.9 [a]; 65-3.10 [a]), there was no basis for the court to direct an assessment of damages (cf. S & M Supply Inc. v Dollar Rent A Car Sys., 5 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2004]).Accordingly, the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
We pass on no other issue.
Rios, J. and Belen, J., concur.
Golia, J.P., concurs in a separate memorandum.
[*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Volmar Volcy,
Appellant,
-against-
ALLSTATE INSURANCE COMPANY,
Respondent.
Golia, J.P., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I simply do not understand, and indeed marvel at, the failure of the defendant either to respond to or to include any affidavits by individuals with personal knowledge of the facts.
Decision Date: July 21, 2005
Reported in New York Official Reports at S.I.A. Med. Supply Inc. v GEICO Ins. Co. (2005 NYSlipOp 51170(U))
| S.I.A. Med. Supply Inc. v GEICO Ins. Co. |
| 2005 NYSlipOp 51170(U) |
| Decided on July 21, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1561 Q C
against
GEICO Insurance Company, Appellant.
Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan), entered April 28, 2004, denying its motion to sever the claim of each assignor into a separate action.
Order unanimously reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.
Plaintiff commenced this action to recover no-fault benefits as assignee of 11 eligible injured persons. The claims allegedly arose out of separate accidents involving different assignors. Defendant moved to sever the assigned claims in the complaint into separate actions pursuant to CPLR 603, which motion the court below denied by order entered April 28, 2004. We note that although this case involves 11 different assignors, the appellate record is not clear as to whether the second through eleventh causes of action involve 5 or 10 separate accidents.
In light of the recent trend in cases involving severance of large numbers of assigned claims which, if tried together, would be unwieldy and would create a substantial risk of confusing the trier of fact, we find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [*2][2004]). Defendant’s answer clearly places at issue, inter alia, the necessity and reasonableness of the rendered medical supplies
[*3]
and the sufficiency of the no-fault forms that have been submitted (see Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: July 21, 2005
Reported in New York Official Reports at A.B. Med. Servs. PLLC v USAA Gen. Indem. Co. (2005 NY Slip Op 25297)
| A.B. Med. Servs. PLLC v USAA Gen. Indem. Co. |
| 2005 NY Slip Op 25297 [9 Misc 3d 19] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, October 05, 2005 |
[*1]
| A.B. Medical Services PLLC et al., as Assignees of Lexiane Lapomarel and Another, Appellants, v USAA General Indemnity Company, Respondent. |
Supreme Court, Appellate Term, Second Department, July 21, 2005
APPEARANCES OF COUNSEL
Amos Weinberg, Great Neck, for appellants.
Memorandum.
Order reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for medical services rendered to their assignors, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amount 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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 2003]).
Defendant’s denial of claim forms, submitted by plaintiffs for their claims pertaining to assignor Lapomarel in the sum of $4,980.17 and assignor Henningham in the sum of $2,160.94, which indicated the dates on which the claims were received, adequately established that plaintiffs sent, and that defendant received, these respective claims (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & [*2]11th Jud Dists 2004]). The stated{**9 Misc 3d at 21} basis for denial of these claims was the failure of plaintiffs’ assignors to appear for scheduled independent medical examinations (IMEs).
Pursuant to the mandatory personal injury protection endorsement of the insurance regulations, “[t]he eligible person shall submit to medical examination . . . when, and as often as, the Company may reasonably require” (11 NYCRR 65.12 [e], now 11 NYCRR 65-1.1 [d]). Where
“an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper preclaim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . [and] such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists 2004]).
Contrary to plaintiffs’ contention, the insurance rules governing postclaim verification requests, including the “follow-up” requirements (see 11 NYCRR 65.15 [e] [2], now 11 NYCRR 65-3.6 [b]; see also 11 NYCRR 65.15 [d] [2], [3], [4], now 11 NYCRR 65-3.5 [b], [d], [e]; 11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [1]) are inapplicable to an insurer’s preclaim IME requests (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [2004], supra). A plaintiff, however, may be entitled to prevail on its summary judgment motion, if in support thereof it
“explain[s] the eligible injured person’s failure to attend the [preclaim] IME by offering a valid excuse for such nonappearance, or [submits] proof that, under the circumstances, the IME request was unreasonable and, thus, not authorized by 11 NYCRR 65.12 (now 11 NYCRR 65-1.1) . . . [and] defendant’s opposition papers otherwise fail to raise a triable issue of fact” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d at 22).
It is undisputed on the record that defendant timely denied these claims. Further, the affidavit of plaintiffs’ assignors establishes that they received defendant’s IME requests dated May 4, 2001, scheduling a chiropractic IME on May 18, 2001,{**9 Misc 3d at 22} and a neurological IME on May 21, 2001. In their affidavit, plaintiffs’ assignors also alleged that they could not attend the IMEs and that prior thereto they sought to reschedule same. Defendant rescheduled the May 18, 2001 appointment to June 4, 2001, but subsequently cancelled the June 4, 2001 appointment. Plaintiffs’ assignors further alleged that defendant refused their prior request to reschedule the May 21, 2001 appointment.
These factual allegations were sufficient to demonstrate a reasonable excuse for nonattendance by plaintiffs’ assignors at the IME scheduled for June 4, 2001, since defendant cancelled this appointment. Moreover, the affidavit indicates that plaintiffs’ assignors acted in good faith in attempting to reschedule the May 21, 2001 IME appointment. In opposition to plaintiffs’ motion, defendant has not disputed the allegations in the affidavit nor demonstrated that plaintiffs’ assignors were not acting in good faith in attempting to schedule mutually convenient IMEs, or otherwise addressed the same. In the absence of any such showing by defendant, its papers in opposition to plaintiffs’ motion are insufficient to raise any issue of fact with respect to the assignors’ proffered valid excuse for their nonattendance. Accordingly, under our holding in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18 [2004], supra), defendant has failed to rebut the presumption of medical necessity which attaches to the claim form. [*3]
Plaintiffs submitted proper proof of mailing with regard to the remaining claims pertaining to assignor Lapomarel in the sum of $8,869.96 and assignor Henningham in the sum of $10,097.42, for which there are no denial of claim forms (see Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists 2004]). It is undisputed that defendant did not issue timely denial of claim forms within the 30-day prescribed period as required under the insurance regulations (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), nor did it seek to extend the 30-day period by a timely verification request (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.5 [b]). Accordingly, defendant is precluded from asserting the defense of nonattendance at the scheduled IMEs (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). In any event, even assuming there were timely denials of these claims, defendant’s opposition papers fail to raise an issue of fact with regard to said defense for the reasons set forth above.{**9 Misc 3d at 23}
Defendant’s reliance on a prior arbitration award in its favor, which denied no-fault benefits sought to be recovered by the claimant Park Slope Medical Diagnostics as assignee of Lapomarel, and which involved claims arising from the same accident upon which the claims in the instant action are based, is misplaced. Insurance Law § 5106 (b) sets forth that “[e]very insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits . . . to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent.” A claimant’s election to arbitrate disputed no-fault claims waives the right to litigate subsequent claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985] [although the plaintiff’s claim arose after the arbitration award and was therefore not barred by res judicata and collateral estoppel, her election to arbitrate precluded litigation for first-party benefits arising out of the same accident]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]; Gaul v American Employers’ Ins. Co., 302 AD2d 875 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U] [App Term, 2d & 11th Jud Dists 2003]).
The prior arbitration proceeding involved a different claimant provider, and cannot act to preclude the instant action commenced by the plaintiffs providers seeking reimbursement of disputed no-fault benefits, even though the claims arise from the same accident. Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits. Consequently, the providers herein are not precluded from bringing the instant suit. Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action.
Accordingly, summary judgment is granted in favor of plaintiffs, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Golia, J.P., concurs with the result only in the following memorandum:{**9 Misc 3d at 24} While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. Most particularly I note my dissent in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]).
Belen and Rios, JJ., concur; Golia, J.P., concurs in a separate memorandum.Ocean Diagnostic Imaging P.C. v General Assur. Co. (2005 NY Slip Op 51155(U))
Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v General Assur. Co. (2005 NY Slip Op 51155(U))
[*1]| Ocean Diagnostic Imaging P.C. v General Assur. Co. |
| 2005 NYSlipOp 51155(U) |
| Decided on July 21, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-1045 K C NO.2004-1045 K C
against
General Assurance Company, Respondent.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (D. Kurtz, J.), entered on June 4, 2004, as granted its motion for summary judgment to the extent of ordering an assessment of damages.
Order modified by providing that plaintiff’s motion for summary judgment is granted, by deleting therefrom the provision requiring an assessment of damages and by remanding the matter to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.
In awarding summary judgment in favor of plaintiff, the court erroneously set the matter down for an assessment of damages. Inasmuch as plaintiff made out a prima facie case by the submission of proof of the claim and the amount of the loss sustained (Insurance Law § 5106), and the calculation of interest and attorney’s fees is prescribed by statute (Insurance Law § 5106 [a]) and the regulations promulgated thereunder (11 NYCRR 65-3.9 [a]; 65-3.10 [a]), there was no basis for the court to direct an assessment of damages (cf. S & M Supply Inc. v Dollar Rent A Car Sys., 5 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
[*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Donald Myers,
Appellant,
-against-
GENERAL ASSURANCE COMPANY,
Respondent.
Golia, J.P., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I simply do not understand, and indeed marvel at, the failure of the defendant either to respond to or to include any affidavits by individuals with personal knowledge of the facts.
Decision Date: July 21, 2005Poole v Allstate Ins. Co. (2005 NY Slip Op 06017)
Reported in New York Official Reports at Poole v Allstate Ins. Co. (2005 NY Slip Op 06017)
| Poole v Allstate Ins. Co. |
| 2005 NY Slip Op 06017 [20 AD3d 518] |
| July 18, 2005 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Patrick Poole, Respondent, v Allstate Insurance Company, Appellant. |
—[*1]
In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 25, 2004, which denied its motion to sever the causes of action to recover unpaid no-fault benefits asserted by the plaintiff.
Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is granted, and the causes of action to recover no-fault benefits are severed.
The plaintiff, the assignee of 47 no-fault claims, commenced this action to recover unpaid no-fault benefits for medical services he allegedly provided to 47 different patients, the plaintiff’s assignors. Following joinder of issue, the defendant insurer moved to sever the 47 causes of action. The Supreme Court denied the motion. We reverse.
While the claims at issue are being prosecuted by a single assignee against a single insurer and all allege the erroneous nonpayment of no-fault benefits (see generally Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569 [1987]), they arise from 47 different automobile accidents on various dates in which the 47 unrelated assignors suffered diverse injuries and required different medical treatment. Moreover, the defendant persuasively contends that the reasons for the denial of benefits, as well as the defenses raised in its answer, are many and varied, and would necessarily entail mini-trials as to the individual claims. Under these circumstances, it was an improvident [*2]exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; see also Deajess Med. Imaging, P.C. v GEICO Gen. Ins. Co., 2005 WL 823884, 2005 US Dist LEXIS 5957 [SD NY, Apr. 7, 2005]; Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [SD NY, July 15, 2004]). Schmidt, J.P., Mastro, Rivera and Skelos, JJ., concur.
Reported in New York Official Reports at New York & Presbyt. Hosp. v AIU Ins. Co. (2005 NY Slip Op 06014)
| New York & Presbyt. Hosp. v AIU Ins. Co. |
| 2005 NY Slip Op 06014 [20 AD3d 515] |
| July 18, 2005 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| New York and Presbyterian Hospital, as Assignee of Luis Reyes, Respondent, et al., Plaintiff, v AIU Insurance Company, Appellant. |
—[*1]
In an action to recover unpaid no-fault insurance medical benefits, the defendant appeals (1) from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (McCarty, J.), entered April 1, 2004, as, upon a decision of the same court dated January 23, 2004, granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital, and, in effect, denied its cross motion for summary judgment dismissing the complaint, and is in favor of the plaintiff New York and Presbyterian Hospital and against it in the principal sum of $14,574, (2), as limited by its brief, from so much of an order of the same court entered June 30, 2004, as, in effect, upon reargument, adhered in part to the prior determination in the decision dated January 23, 2004, and (3) from so much of an order of the same court entered August 25, 2004, as denied its motion for leave to renew that branch of the plaintiff’s prior motion which was for summary judgment on the first cause of action.
Ordered that the appeal from the order entered June 30, 2004, is dismissed as no appeal lies from an order made upon reargument and adhering to the prior determination in a decision (see Matter of A & S Transp. Co. v County of Nassau, 154 AD2d 456 [1989]); and it is further,
Ordered that the appeal from the order entered August 25, 2004, is dismissed as [*2]academic in light of the determination of the appeal from the order and judgment; and it is further,
Ordered that the order and judgment is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital is denied, and the decision entered June 30, 2004, and the order entered August 25, 2004, are vacated; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits was overdue” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]). However, in opposition to the motion, the defendant established that it had previously and timely denied the same claim, and that the no-fault billing at issue was a resubmission of a claim to which the rule that a claim must be paid or denied within 30 days did not apply (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]).
Notwithstanding that the defendant established that its prior denial of the claim was timely, the defendant failed to establish its entitlement to summary judgment dismissing the complaint based on the intoxication exclusion (see Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]; North v Travelers Ins. Co., 218 AD2d 901 [1995]). Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.
Reported in New York Official Reports at Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C. (2005 NY Slip Op 51101(U))
[*1]| Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C. |
| 2005 NY Slip Op 51101(U) |
| Decided on July 12, 2005 |
| Supreme Court, New York County |
| Ramos, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Lumbermens Mutual Casualty Company, Plaintiff,
against Inwood Hill Medical, P.C., BRIDGE MEDICAL, P.C., PROSCAN IMAGING, P.C., AKITA MEDICAL ACUPUNCTURE, P.C., NEW PSYCHOLOGY, P.C., EL CHIROPRACTIC, P.C., NEW APPLE ACUPUNCTURE, P.C., IMAGE CHIROPRACTIC, P.C., TRIBORO MEDICAL SUPPLY, INC., ROBERT J. BAKER,P.C., DWP PAIN FREE MEDICAL, P.C., MANHATTAN MEDICAL IMAGING, P.C., BRONX NEURODIAGNOSTICS, P.C., ANA PINA, ANTONIO MEDINA, JACK CAMBRELEN, and LUIS T. FIGUEROA, Defendants. |
604031/03
Charles Edward Ramos, J.
In this declaratory judgment action, plaintiff seeks an order declaring that defendants are not entitled to coverage under a personal automobile insurance policy. In this motion, defendants El Chiropractic, P.C. (El Chiropractic), Inwood Hill Medical, P.C. (Inwood Hill), and New Psychology, P.C. (New Psychology) (together, the providers) seek summary judgment (CPLR 3212) dismissing the complaint, as well as judgment on their counterclaims. Plaintiff cross-moves for summary judgment on its complaint.
Defendants Ana Pina, Antonio Medina, and Jack Cambrelen were occupants of a vehicle that was allegedly involved in an August 26, 2003, single-car, accident. The vehicle so involved, was owned by defendant Luis T. Figueroa, and was listed as a covered automobile on policy No. WY459328 (the policy) as issued by plaintiff to Figueroa on July 2, 2003.
According to plaintiff, it received notice of the alleged accident on or about September 3, 2003. Plaintiff asserts that as soon as it became aware of the details of the alleged accident, it deemed the accident suspicious. Plaintiff maintains that its suspicions were raised because: (1) Figueroa was not in the car at the time of the accident; (2) none of the occupants in Figueroa’s vehicle had any familial relationship to him; and (3) this claim was the second on the policy, which at the time of the alleged accident had been in force less than 2 months. [*2]
Plaintiff contends that because of its suspicions regarding the nature of the accident, it sought examinations under oath (EUOs) of the three occupants of Figueroa’s vehicle (i.e., Pina, Medina, and Cambrelen) as well as of Figueroa, the policyholder. Plaintiff has proffered copies of letters, dated September 30, 2003, which were sent to Pina, Medina, Cambrelen, and Figueroa. Those letters contain requests that each of the addressees appear at individually scheduled EUOs. Proof of mailing is proffered only for the letters addressed to Pina, Cambrelen, and Figueroa. See Notice of Cross Motion, Exh. B.
It is uncontroverted that none of Pina, Medina, Cambrelen, or Figueroa appeared at an EUO nor responded to plaintiff’s September 30, 2003 written requests. According to plaintiff, follow-up attempts to schedule EUOs were made on October 17, 2003 and November 7, 2003. Plaintiff has included copies of the returned envelopes for the October 17, 2003 letters sent to Pina, Cambrelen, and Figueroa. No proof of mailing, however, is provided for any of plaintiffs’ alleged November 7, 2003 letters. When Pina, Medina, and Cambrelen failed to appear at the first scheduled EUO, plaintiff allegedly sought the additional verification of an Independent Medical Examination (IME) for each of those defendants. Plaintiff has proffered letters allegedly sent by “Independent Review Services, Inc.” scheduling those IMEs, and later attempting to reschedule them. However, neither proof of mailing nor an affidavit as to mailing is proffered for any of those alleged attempts.
It is uncontested that Pina, Medina, Cambrelen, and Figueroa failed to appear at any of the scheduled dates for an IME, and that, to date, none of the defendants has appeared for an EUO or an IME.
Plaintiff acknowledges that during the time it was attempting to obtain the EUOs and IMEs, plaintiff began receiving bills from the medical and psychological care providers. In response to the bills that were submitted for the assignees Pina, Medina, and Cambrelen, plaintiff wrote that: “[t]here will be a delay in our consideration of the medical bills for this patient because of the following reasons: An examination under oath has been scheduled for some of the parties in this accident. Your bill will be considered when all of the pertinent information has been received.”
On November 25, 2003 and November 26, 2003, after Pina, Medina, Cambrelen, and Figueroa failed to appear for any of the scheduled EUOs or IMEs, plaintiff sent denials of all claims to defendant providers (NF-10s). See Notice of Cross Motion, Exh. N.
Plaintiff then initiated this action to seek a declaration that by failing to appear at either the EUOs or IMEs, Pina, Medina, Cambrelen, and Figueroa breached the policy conditions and, thus, were not entitled to coverage for injuries allegedly sustained as the result of the alleged August 26, 2003 accident.
In this motion, defendants contend that they are entitled to full reimbursement, totaling $ $6398.58 (plus interest and attorney fees), of certain claims assigned to them by Pina and Cambrelen, because: (1) plaintiff’s letters deferring a decision on the providers’ claim’ until the Pina and Cambrelen’s appearance at EUOs was insufficient to meet the requirements of Insurance Law § 5106 (a); and (2) plaintiff was required to timely notify the occupants of the vehicle (i.e., Pina, Medina, and Cambrelen) of their rescheduled EUOs and IMEs, and failed to do so.
Pursuant to CPLR 3212, the movants and cross-movant each seek summary judgment. [*3]Under that section, a movant must establish entitlement to a court’s directing judgment in its favor as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320 (1986). “[I]t must clearly appear that no material and triable issue of fact is presented” (Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]), because summary judgment is a drastic remedy that should not be invoked where there is any doubt as to the existence of a triable issue or when the issue is even arguable. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980).
Insurance Law § 5106 (a) governs the payment of no-fault benefits to claimants, and requires that, “[p]ayments of first party benefits … shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” Regulations regarding these requirements are contained in 11 NYCRR 65.15 (g) (3), i.e., “[w]ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the [no-fault] claim in whole or part.”
However, a provider that claims standing as the result of an assignment of benefits is entitled to recover for services rendered only when a properly executed assignment is proffered. See 11 NYCRR 65-3.11(b)(2); see also T&G Medical Supplies, Inc. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 1017 (Civ Ct, NY County 2005); Doshi Diagnostic Imaging Services v Progressive Ins. Co., 7 Misc 3d 1003 (Dist Ct, Nassau County 2005). Such assignment must include at least “the assignor and assignee’s name, the date of the accident, and be signed and dated by the assignor.” Inwood Hill Medical P.C. v Allstate Ins. Co., 3 Misc 3d 1110, 1110 (Civ Ct, NY County 2004).
It is only after providers offer proof of their standing that their claims can be considered. In this motion, defendant providers have proffered two assignments for Pina (to Inwood Hill and to El Chiropractic), and one complete and one incomplete assignment for Cambrelen (the complete assignment is to El Chiropractic). See Notice of Cross Motion, Exh.D. No other complete assignments have been proffered. It has previously been held that the No-Fault law regulations, including those regarding assignments, are to be strictly construed (see Presbyterian Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210 [2d Dept 1994]; see also Doshi Diagnostic Imaging Services v Progressive Ins. Co., supra ), and, therefore, this court will only consider for payment those claims set forth pursuant to complete valid assignments. Those claims are as follows:
| Patient | Provider | Dates of Service | Amount of Claim |
| Pina | Inwood Hill | 9/9/03 | $154.30 |
| Pina | Inwood Hill | 9/10-11, 9/15-19, 9/24 | $540.80 |
| Pina | Inwood Hill | 9/10, 9/15, 9/17, 9/19, 9/24 | $371.45 |
| Pina | Inwood Hill | 9/10 | $80.02 |
| Pina | Inwood Hill | 9/16 | $440.22 |
| Pina | Inwood Hill | 9/24 | $230.09 |
| Pina | El Chiropractic | 9/9-11, 9/15-19, 9/24 | $324.34 |
| Cambrelen | El Chiropractic | 9/9-11, 9/15-19, 9/24 | $324.34 |
Further, because plaintiff, in its cross motion, is seeking an order declaring that all claims by the defendant providers on behalf of Pina, Medina, and Cambrelen are not covered under Figueroa’s policy, the providers were obligated to proffer assignments from those defendants to prove standing to assert those claims. Because the providers have not so proffered, any claims by the providers for services to Pina, Medina and Cambrelen that are not listed above are dismissed.
As to the above claims for which complete assignments have been proffered, once the provider has proved its standing to recover for services, a court may then consider whether an insurer has made a timely denial of a claim. Failure of an insurer to make a timely denial of benefits within 30 days of receipt of a claim or to request verification of the claim will result in a defendant insurer waiving all defenses, except for those of lack of coverage and fraud. See Presbyterian Hosp. v Maryland Casualty Co., 90 NY2d 274 (1997); see also New York and Presbyterian Hosp. v Allstate Ins. Co., 12 AD3d 579 (2d Dept 2004). Because plaintiff here has not alleged fraud or lack of coverage in its complaint, it was required to make a timely denial of defendants’ eligible claims or to pay them to the appropriate provider.
Plaintiff maintains that it received notice of the accident on September 3, 2003. See Scriber Affirmation, ¶ 6. However, the providers’ claims (as submitted on NF-3s) were not submitted until various dates in October and November of 2003. If an insurer seeks verification of the claim after receipt,[FN1] the insurer may, within 10 business days after receipt of a claim, “forward to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.” 11 NYCRR 65-3.5 (a). Because defendants have not proffered any claims as the result of the alleged August 26, 2003 that were submitted to plaintiff in September 2003, this court holds, as a matter of law, that if the proffered September 30, 2003 letters were sent to Pina, Medina, Cambrelen, and Figueroa, those letters were timely requests for verification.
“In order to meet the mandates of the regulations, the insurer must demonstrate that the request for verification was properly mailed to the claimant.” PDG Psychological PC v State Farm Mut. Ins. Co., 6 Misc 3d 1022, 1022 (Civ Ct, NY County 2005). Plaintiff has proffered sufficient proof that the September 30, 2003 letters were properly mailed to Pina, Cambrelen, and Figueroa.[FN2]
Once Pina, Cambrelen, and Figueroa failed to respond to the letters allegedly sent by plaintiff, plaintiff was required to make follow-up attempts at verification. The Regulation that requires insurers to follow-up if verification has not been received (i.e., 11 NYCRR 65-3.6[b]) provides that follow-up requests for attendance at EUOs must be sent within 40 calendar days of the original request. See also Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., 7 Misc 3d 135 (AT, 2 and 11, 2005).
Because the EUOs were scheduled to be held on October and 7th and 8th of 2003, if the [*5]October 17, 2003 follow-up letters requesting attendance at rescheduled EUOs were actually sent to Pina, Cambrelen and Figueroa, they too were timely. Plaintiff has proffered sufficient proof that the October 17, 2003 letters were properly mailed to Pina, Cambrelen, and Figueroa so that those letters may serve as the follow-up verification requests. However, timeliness of the verification request is not the only consideration when a court reviews a no-fault claim. The content of the verification request must also be reviewed. “An insurer must stand or fall on reasons for denial stated in the NF-10” (King v State Farm Ins. Co., 218 AD2d 863 [3d Dept 1995]), and any request for verification must be judged in that light. See Lee v American Transit Ins. Co., 304 AD2d 713 (2d Dept 2003). Here, there is no question that, given the suspicions of the insurer/plaintiff, as listed above, the requests for EUOs were reasonable and directly related to the disclaimer reasons stated in the NF-10s.
An insurer’s notification to the provider that the claim is pending while verification is sought is also subject to court scrutiny. See Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co., supra . “[A]n insurer may not rely on a letter … that merely informs a claimant that a decision on the claim is delayed pending an investigation, … without specifying a particular form of verification and the person or entity from whom the verification is sought.” Melbourne Medical, P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 92 (App Term, 2d & 11th Jud Dists 2004). It is uncontested that, as respects the claims asserted by the providers, plaintiff sent letters listing the claim and alleged accident victim, and stating that “[t]here will be a delay in our consideration of the medical bills for this patient because … [a]n examination under oath has been scheduled for some of the parties in this accident.” This verbiage, which contains the name of the claimant and the type of verification requested, is sufficient to toll the-30 day period for filing of the NF-10s.
Defendants further contend that plaintiff’s NF-10s were not sufficiently specific nor timely. Because an insurer’s time to respond to a claim does not begin to run if a claimant fails to respond to an insurer’s timely request for verification (see St Vincent’s Hosp. of Richmond v American Transit Ins. Co., 299 AD2d 338 [2d Dept 2002]; see also Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]), plaintiff’s delay until November 25, 2003 and November 26, 2003 to send out the NF-10s was not consequential.
“An NF-10 must be made with a high degree of specificity of the grounds on which the disclaimer is predicated and an insurer will not be permitted to assert a defense not specifically made in the NF-10.” Universal Acupuncture Pain Services P.C. v Lumberman’s Mutual Casualty Co., 195 Misc2d 352, 352 (Civ Ct, Queens County 2003); see also Metropolitan Radiological Imaging P.C. v State Farm Ins. Co., 7 Misc 3d 675 (Civ Ct, Queens County 2005); All-County Medical & Diagnostic P.C. v Progressive Cas. Ins. Co., ___ Misc 3d ____, 795 NYS2d 434 (Dist Ct, Nassau County 2005).
Plaintiff has included copies of the NF-10s allegedly sent to defendants regarding the claims in question. A review of that document is indispensable to deciding whether its content is sufficient to give notice to a claimant of the specific reasons for an insurer’s denial of a claim. This court holds, as a matter of law, that the NF-10s in question, which state that the claims were denied based upon the claimants’ failure to appear at the scheduled independent medical examination (see Notice of Cross Motion, Exh. N) were sufficiently specific to deny the claims [*6]assigned by Pina and Cambrelen.
Defendants finally deny that the alleged NF-10s were mailed to either defendant Inwood Hill or to New Psychology. Defendants do not deny that the NF-10s were timely mailed to El Chiropractic. Although plaintiff has not proffered proof of mailing of such notices to Inwood Hill, plaintiff has offered the affidavit of Christine Hemingway (Hemingway), a claims representative in the employ of plaintiff, who contends that she has personal knowledge that plaintiff “timely and properly issued NF-10 forms denying all of the [providers’] bills.”
Because this court has held above that New Psychology has no standing to assert claims on behalf of either Pina or Cambrelen, the only question is whether the NF-10s were timely mailed to Inwood Hill. Hemingway’s affidavit is sufficient to raise a question of material fact as to whether such NF-10s were timely mailed to Inwood Hill. Therefore, what is to be determined at trial is limited to whether or not the NF-10s as respects Pina and Cambrelen were timely mailed to Inwood Hill.
The question then becomes what are the ramifications of Pina and Cambrelen’s failure to appear at any of the scheduled EUOs or the IMEs. If allegedly injured persons fail to appear at scheduled EUOs and IMEs rebuts the presumption of medical necessity of a provider’s service. See Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., supra . Although failure to appear rebuts the presumption of the medical necessity of Inwood Hill’s treatment of Pina and Cambrelen, it does not require dismissal of the action. Id. A question of fact is raised, and the provider is still entitled to show medical necessity of the treatment at trial. See Millennium Medical Diagnostics, P.C. v Liberty Mut. Ins. Co., 2001 WESTLAW 1803470 (AT, 2 and 11, 2001), affd 306 AD2d 388 (2d Dept 2003); see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127 (AT, 2 and 11, 2004).
Lastly, this court must address plaintiff’s intimation that there may have been fraud involved in these claims. See Copy of Newspaper Article attached to Notice of Cross Motion, Exhibit O. Although an insurer is “not precluded from asserting the defense that the alleged injuries were causally unrelated to the accident” (Ocean Diagnostic Imaging P.C. a/a/o Nataliya Gerber v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132(A), 132 (AT, 2 and 11, 2005), and this court is mindful of the ever-increasing number of fraudulent claims arising out of the no-fault law (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., supra ), the gratuitous inclusion of an article on widespread fraud taking place in automobile accidents in this State has no relevance to this action. Plaintiff has not alleged fraud in its complaint, nor has it proffered any evidence that Pina, Medina, Cambrelen, Figueroa, or any of the providers committed fraud. Therefore, although it is true that fraud or lack of coverage would negate the requirement that an insurer deny a “no-fault” claim within 30 days, those exceptions are not applicable here.
Accordingly, it is hereby
ORDERED that defendants’ motion for summary judgment is denied; and it is further
ORDERED that plaintiff’s cross motion for summary judgment is granted only to the extent of declaring that plaintiff has no obligation to pay any claims assigned by Antonio Medina to Inwood Hill Medical, P.C., New Psychology, P.C., and El Chiropractic, P.C., as well as dismissing the counterclaims of: (1) New Psychology, P.C. for services provided to Ana Pina and [*7]Jack Cambrelen; and (2) Inwood Hill Medical, P.C. for services provided to Jack Cambrelen; and is otherwise denied.
Dated: July 12, 2005 _____________
J.S.C.
Footnote 1: Both EUOs and IMEs are included as additional verification for the purposes of the Insurance Law. See 11 NYCRR 65-1.1 (d) and 11 NYCRR 65-3.5 (d).
Footnote 2: No proof of mailing is proffered for any letters to Medina, but, in their counterclaims, the providers are not seeking to recover for services rendered to Medina.Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co. (2005 NY Slip Op 51058(U))
Reported in New York Official Reports at Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co. (2005 NY Slip Op 51058(U))
| Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co. |
| 2005 NY Slip Op 51058(U) |
| Decided on July 8, 2005 |
| Civil Court Of The City Of New York, Queens County |
| Dunbar, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court of the City of New York, Queens County
Boai Zhong Yi Acupuncture Services, P.C., a/a/o SZTABEREK LUCYNA, Plaintiff,
against New York Central Mut. Fire Ins Co., Defendant. |
120335/03
Gerald J. Dunbar, J.
This matter came before the Court on May 20, 2005, by way of Plaintiff’s Motion for Summary Judgment, pursuant to CPLR § 3212, for recovery of unpaid No-fault benefits in the sum of $4,619.33, along with statutory interest at the rate of two (2%) percent, compounded, per month, pursuant to 11 NYCRR 65.15 (g), and statutory attorneys’ fees on behalf of Plaintiff Assignee. The Plaintiff’s assignor was injured in an automobile accident in the City of New York. There is no claim that anything other than the No-Fault Regulations apply to the instant matter.
By way of comment, the Court notes that Counsel for Defendant appears to request, in his Affirmation in Opposition to the above-requested relief, a deposition of Plaintiff. As there is no cross-motion before it, the Court cannot properly address this request. [*2]
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 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. Mailing of each claim is proven by Defendant’s NF-10, Denial of Claim forms, which admit receipt of Plaintiff’s claims as follows: Claim Number 1, in the sum of $2,664.33, received by Defendant on November 7, 2001(“Claim No.1”); Claim Number 2, in the sum of $1,020.00, received by Defendant on November 26, 2001 (“Claim #
2″); Claim Number 3, in the sum of $680.00, received by Defendant on December 20, 2001 (“Claim #
3″); Claim Number 4, in the sum of $255.00, received by Defendant on January 10, 2002 (“Claim #
4″).
The admission of receipt in the Defendant’s NF-10 Denials are adequate admission of mailing and prove that aspect of Plaintiff’s prima facie case. A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A), 787 NYS2d 675 [App Term 2nd & 11th Jud Dist 2004]; A.B. Medical Services, PLLC v State Farm Mut. Automobile Ins. Co., NYLJ 2/20/04, p. 26, col. 6. Defendant proves mailing of it’s NF-10 denials by way of the Affidavit of its employee, Justin Barth, a no fault examiner and manager. However, each of the above-referenced claims were denied on April 10, 2002, and are untimely on their face.
As the NF-10 Denials are facially untimely and well outside of the thirty (30) day period established for denial of said claims in accordance with 11 NYCRR 65-3. The burden is, thereafter, on Defendant to show that the thirty (30) day period was tolled by proper verification requests and/or that a Chubb defense exists which falls outside of the thirty (30) day requirement. Defendant has submitted no proof of mailing of the verification requests sent herein, though Defendant submits proof in admissible form, of the mailing of the NF-10 by way of Mr. Barth’s Affidavit, as stated above, Thus, the purported proof of the Verification Requests and follow-up letters “amounted to unsubstantiated hearsay”. Ocean Diagnostic Imaging, P.C. v Lumberman’s Mutual Casualty, 2005 WL 1208401 [App Term 2nd and 11th Jud Dist]
Therefore, Defendant only avoids being precluded from denial of the claim in the event of an allegation of fraud. Therefore, Defendant has waived the defense that inappropriate codes and charges have been assigned to the treatment based upon the untimeliness of the denials as such objections do not “implicate coverage matters” and Defendant is precluded from raising them belatedly. Central General Hospital v Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 [1997].
The remaining questions for the Court are whether the low impact study propounded by Defendant gives rise to a “founded belief that the alleged injury did not arise out [*3]of an insured incident”. PDG Psychological, PC v State Farm Mutual Insurance Co., 6 Misc 3d 1022(A) [2005], and whether said study has been submitted in admissible, evidentiary, form. If the study is submitted in admissible form and has a proper factual basis, it is the bedrock upon which a founded belief shall lie. Ocean Diagnostic Imaging, PC v New York Central Mut. Fire Ins. Co., 7 Misc 3d 132(A) [App Term 2nd and 11th Jud. Dist. 2005]. The basis for the denials, as set forth in the NF-10’s is a “low-impact study” purportedly prepared with respect to the incident complained of, the results of which are alleged to have shown that the assignor’s injuries did not result from the accident in question.
In this particular matter, the Affidavit of Albert Cipriani, and employee of FTI/SEA submits an Affidavit detailing the conclusions purportedly drawn in the low impact study, but fails to submit the study to the Court. Mr. Cipriani’s Affidavit was executed in Maryland, before a Maryland Notary, and said is not in admissible form as the Affidavit fails to comply with CPLR § 2309 ( c ), which requires a certificate of conformity to accompany the out-of-state Affidavit. Citibank (South Dakota) N.A. v. Mosquera, 5 Misc 3d 134 (A) [App Term 2nd and 11th Jud Dist 2004]; Ford Motor Credit Co. v Prestige Gown Cleaning Services, Inc., 193 Misc2d 262, 748 NYS2d 235 [Civ Ct Queens 2002]. Thus, the Affidavit is insufficient to defeat Summary Judgment.
Moreover, the Court in Ocean Diagnostic Imaging, was very specific in finding that the “‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’, together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[] not arise out of an insured incident’.” 7 Misc 3d 132 (A) (emphasis added) (cites omitted).
Even if Mr. Cipriani’s Affidavit were in admissible form and properly sworn, it still would be insufficient to adequately raise an issue of fact as to Defendant’s purported founded belief. Mr. Cipriani fails to assert that he was the person who prepared the report and fails to annex the report to Defendant’s papers submitted herein. Thus, Defendant’s opposition papers are “insufficient to warrant denial of [the] plaintiff’s motion for summary judgment”. A.B. Med. Srvcs., PLLC v Electric Ins. Co., NYLJ 4/20/05, p. 25, col. 5.
Accordingly, the Court finds that Plaintiff has made out its case for breach of contract and for recovery of unpaid no-fault benefits. Plaintiff’s Motion for Summary Judgment is granted in all respects, and Judgment granted as follows: on Claim #
1, in the sum of $2,664.33, with statutory interest from December 8, 2001; on Claim #
2, in the sum of $1,020.00, with statutory interest from December 27, 2001; on Claim #
3, in the sum of $680.00, with statutory interest from January 20, 2002; on Claim #
4, in the sum of $255.00, with statutory interest from February 10, 2002. Interest to be calculated by the Clerk of Court at the statutory rate of two (2%) percent per month, compounded, from the respective dates set forth above, Plaintiff also to have judgment for statutory attorneys fees as per the NYCRR at twenty (20%) percent of the total medical bill plus interest thereon, plus costs and disbursements.
The foregoing constitutes the decision and order of the Court. [*4]
Dated: July 8, 2005
____________________________________
GERALD J. DUNBAR, JCC
Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772(U))
| Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2005 NY Slip Op 51772(U) [9 Misc 3d 138(A)] |
| Decided on July 7, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
2004-1268 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied its motion for summary judgment.
Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by
proof that it submitted claims, setting forth the fact and the amount 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In opposition, defendant contended that the claims were properly denied based on, inter alia, the assignors’ failures to attend independent medical examinations (IMEs).
Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of [*2]medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).
It is undisputed on the record that defendant timely denied the claims pertaining to assignors Alex Kapitonov and Leny Petrov. However, defendant has failed to establish by proof in admissible form proper mailing of the pre-claim IME requests as to these assignors. Defendant submitted the affidavits of an employee of Allegiance Health Medical P.C. which schedules IMEs for defendant, and the affidavit of its “no-fault specialist and manager.” The affidavits, however, are insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the IME request letters were actually mailed. Nor did the affidavits contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Careplus Med. Supply v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).
Accordingly, defendant has failed to sustain its defense of nonattendance of scheduled pre-claim IMEs as to these assignors. There is also no merit to defendant’s argument on appeal that the claim for services rendered to assignor Petrov was properly denied on the additional ground of improper and/or excessive charges, since in
opposition to plaintiff’s motion for summary judgment, defendant failed to submit any proof in admissible form in support of this defense.
The claim pertaining to assignor Christina Tomlinson was not timely denied within the 30-day prescribed period (see 11 NYCRR 3.8 [c]), nor did defendant produce competent proof in admissible form to establish that the 30-day period was extended by timely verification requests for medical records and for a post-claim IME (see 11 NYCRR 65-3.5 [a]). Defendant’s submissions were insufficient to establish proper mailing of said verification requests (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, supra). Moreover, even assuming proper proof of mailing, defendant has failed to demonstrate that it complied with the follow-up requirements applicable to post-claim verification requests (see 11 NYCRR 65-3.6 [b]). Accordingly, as to this claim, defendant is precluded from asserting its defense of nonattendance at the scheduled IME (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Rios and Belen, JJ., concur. [*3]
Golia, J.P., dissents in a separate memorandum.
Golia, J.P., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.
There appears to be no issue as to the mailing of a timely denial by the defendant as to the claim of two of the three assignors (Kapitonov and Petrov) due to said assignors’ failure to attend pre-claim independent medical examinations (IMEs).
As regards to Ms. Tomlinson, the defendant noticed her to appear for a pre-claim IME by letter dated November 12, 2002 scheduling an exam to be held on December 4, 2002. The Tomlinson claim was submitted on November 22, 2002 which was after the notice but prior to the time to appear. Upon Ms. Tomlinson’s failure to appear on December 4, 2002, the defendant noticed her to appear by letter dated December 10, 2002 for a rescheduled IME on December 24, 2002. Although I do not believe that defendant was required to provide for a re-scheduled exam for a pre-claim IME, I cannot fathom that it should be penalized for giving the plaintiff’s assignor a further opportunity to comply. Therefore the 30 day “delay” letter, although similarly unnecessary was nevertheless timely, effective and not inappropriate in this instance. It should however be understood that once an IME is demanded prior to the filing of a claim (pre-claim IME) then any and all subsequent requests for medical examinations will not alter the status of the original demand. It is abundantly clear that the insurer is not seeking an IME as a post-claim request for additional verification which would require compliance with the protocols set forth under the claim provisions. The mere fact that a subsequent request for an IME is sent after the plaintiff files a claim does not transform a second (or third) notice to reschedule a pre-claim IME into a post-claim additional verification request for an independent medical examination. Upon Ms. Tomlinson’s failure to attend the rescheduled IME, the defendant sent a timely denial of claim notice.
The remaining issue concerns the sufficiency of the defendant’s affidavits relating to the mailing of the various IME requests. Although the defendant’s affidavits do not contain detailed mailing procedures necessary to establish proof that a certain item was mailed when faced with a sworn statement that it was not received, I do find that the sworn statements by defendant’s medical examination “scheduler” are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]). Further, I find that the defendant’s timely denials of all of the plaintiff’s claims on the grounds that plaintiff’s assignors failed to attend reasonably requested pre-claim IME’s are sufficient to warrant denial of the plaintiff’s motion for summary judgment.
Decision Date: July 07, 2005
Reported in New York Official Reports at Maximum Physical Therapy, P.C. v Allstate Ins. Co. (2005 NY Slip Op 51215(U))
| Maximum Physical Therapy, P.C. v Allstate Ins. Co. |
| 2005 NY Slip Op 51215(U) |
| Decided on July 7, 2005 |
| Civil Court, Queens County |
| Lane, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court, Queens County
Maximum Physical Therapy, P.C., a/a/o Donnette Coburn, Claimant(s), Plaintiff(s), Petitioner(s),
against Allstate Insurance Company, Defendant(s), Respondent(s). |
87720/04
Howard G. Lane, J.
Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor, Donnette Coburn, pursuant to New York’s No-Fault Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on its claims in the amount of $510.00, on the ground that defendant failed to pay or to deny its claims within the statutory 30-day period as required by Insurance Law § 5106 (a).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Stahl v. Stralberg, 287 AD2d 613 [2d Dept 2001]). The motion must be supported by an affidavit from a person with knowledge of the facts, setting forth all material facts (see CPLR § 3212[b]). [*2]Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied. (see Rebecchi v. Whitmore, 172 AD2d 600 [2d Dept 1991]).
Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, within thirty (30) days after a claimant submits proof of the fact and the amount of loss sustained, an insurer is required to either pay or deny a claim for insurance coverage of medical expenses arising from a motor vehicle accident (see 11 NYCRR 65.15 [g] [3]; Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]; Mount Sinai Hosp., v. Triboro Coach, 263 AD2d 11 [2d Dept 1999]; New York Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583 [2d Dept 2002]).
The only exception to the 30-day rule is where an insurer’s untimely denial is based upon the defense of lack of coverage, or where a medical condition for which the patient was treated, was not related to the accident (Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 NY2d 195 [1997]). To withstand a summary judgment motion based on this defense, the insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the patient’s treatment was unrelated to the accident [see generally Metro Med. Diagnostics, P.C., v. Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]).
Failure to pay or deny a claim within the 30-day period requirement, absent a request for additional verification, renders benefits overdue, and precludes the insurer from disclaiming liability based on a breach of a policy condition or a statutory exclusion defense (St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 720 [2d Dept 1994]). All overdue payments bear interest at a rate of 2% per month, and the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue (see Insurance Law § 5106 [a]; Presbyterian Hosp. in City of New York v. Maryland Cas. Co., 90 NY2d 274 [1997]).
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff’s motion for summary judgment is denied. In support of the motion, plaintiff submits the affirmation of its attorney and the affidavit of Asnodin Dianalan, a purported corporate officer of plaintiff corporation. It is well settled that an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts, is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, [*3]2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). On a summary judgment motion, the insufficiency of an attorney’s affirmation which is not based upon personal knowledge is not cured even when the attorney’s purported knowledge is based upon the attorney’s review of the client’s file (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) (holding an attorney affirmation submitted in opposition to motion for summary judgment in no-fault action arising out of automobile accident, which asserted that attorney’s knowledge regarding whether proper no-fault insurance form had been sent was obtained from reading of the files, rather than his own personal knowledge of the facts, was insufficient to establish existence of triable issue of fact). Thus, although the affirmation of plaintiff’s attorney affirms that she “reviewed the Assignee’s and Defendant’s (sic) business records in the above-captioned file,” it is still of no probative value and is insufficient to establish the existence of any triable issue of fact.
The affidavit of Asnodin Dianalan, a corporate officer of Maximum Physical Therapy, P.C., is also insufficient to establish that there are no issues of fact concerning plaintiff’s claim in that the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan’s affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan’s affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005]). It is implicit in Mr. Dianalan’s affidavit that his knowledge has been obtained either from unnamed and unsworn employees or from unidentified and unproduced business records. The cogent parts of the affidavit are not facts but conclusions. Such impermissible conclusions and hearsay cannot justify a grant of summary judgment (Republic Natl. Bank of NY v. Winston, 107 AD2d 581 [1st Dept 1985]).
Instead of proffering the facts in admissible form, Mr. Dianalan merely adopts the statements of plaintiff’s counsel as contained in the attorney’s affirmation. Plaintiff by reference to the attorney affirmation does not cure the insufficiencies of his affidavit, as the attorney’s affidavit is a mixture of factual statements, inferences, conclusions and legal argument (see Howell Mfg. Corp. v. [*4]Leiblein, 32 Misc 2d 50 (Dist Ct., Nassau County, 1962) (where the court held that the practice of adoption by reference of an attorney’s affirmation on a motion for summary judgment “should not be encouraged.”) By adopting the contents of an affirmation which has no probative value, plaintiff’s affidavit which is devoid of material facts is also of no probative value.
Additionally, the affidavit of plaintiff’s corporate officer is defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that it is separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Prac § 205 at 324 [3d ed]). An affidavit should ordinarily begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., “John Smith, being duly sworn, deposes and says”). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff’s Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)].
Because plaintiff’s affidavit does not satisfy CPLR § 3212(b), plaintiff is not entitled to summary judgment. Accordingly, plaintiff’s motion is denied. Plaintiff failed to prove that it submitted a timely and proper notice of claim pursuant to the No-Fault statue for medical treatment or services rendered, which defendant had not paid (see Park Health Center v. Prudential Insurance Co., 2001 NY Slip Op 40650[U]). As plaintiff’s submissions do not constitute evidentiary proof in admissible form (A.B. Medical Servs. v. Eagle Ins. Co., 3 Misc 3d 8 [NY App. Term, 2003]; Rue v Stokes, 191 AD2d 245 [1st Dept 1993]), and plaintiff has failed to provide a proper and sufficient affidavit from a person with personal knowledge of the facts (see CPLR § 3212), it has failed to raise triable issues of fact.
Accordingly, as there are issues of fact requiring a trial, summary judgment
is unwarranted.
This constitutes the decision and order of this court. [*5]
Dated, July 7, 2005________________________________
Howard G. Lane
Judge, Civil Court