A.B. Med. Servs. PLLC v GEICO Gen. Ins. Co. (2008 NY Slip Op 52641(U))

Nassau Dist Ct

C572/07

REPRESENTATION:

Law Office of Amos Weinberg, 49 Somerset Drive South, Great Neck, NY 10020-1821, Attorney for Plaintiff

Law Office of Teresa M. Spina, 88 Froehlich Farm Blvd., Suite 202, Woodbury, NY 11797

Robert A. Bruno, J.

The motion by plaintiff pursuant to CPLR §3212 for summary judgment for the relief demanded in the complaint is denied. As to the claims for $604.24 for services rendered on May 16, 2006, and all claims from June 1, 2006 onward (the last six claims), summary judgment is granted to the defendant and the complaint is dismissed as to those claims.

This is an action by plaintiff, a former medical services provider, to recover no-fault benefits from the defendant arising out of an automobile accident on April 16, 2006 in which plaintiff’s assignor, one David Ruiz, was allegedly injured. Plaintiff seeks summary judgment regarding $182.37 – $114.33 for services rendered on April 21, 2006; $268.18 – 215.26 for services rendered on April 25-28, 2006; $154.30 – $114.33 for services rendered on May 16, 2006; $407.17 – $114.33 for services rendered on April 28, 2006; $604.24 for services May 16, 2006; $407.17 – $114.33 for services rendered on May 26, 2006; $1,546.20 for services rendered on June 28, 2006; $1,573.24 for services rendered on June 28, 2006; $188.16 for services rendered on June 1-30, 2006; $71.06 for services rendered on July 7, 2006; $407.17 for services rendered on June 30, 2006; and $188.16 for services rendered on July 6-31, 2006.

It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact (Bhatti v. Roche, 140 AD2d 660). It is nevertheless an appropriate tool to weed out meritless claims and defenses(Lewis v. Desmond, 187 AD2d 797; Gray v. Bankers Trust Co. of Albany, N. A., 82 AD2d 168). Generally speaking, to obtain summary judgment, it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR §3212[b]). The burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence in admissible form to demonstrate the existence of a material issue of fact requiring a trial (CPLR §3212, subd [b]) (see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965; Zuckerman v. City of New York, 49 NY2d 557). [*2]However, a movant’s failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 32).

A no-fault claim is overdue if it is not paid or denied within thirty [30] days of receipt (see Insurance Law §5106[a]; 11 NYCRR 65-3.8[a][1] & [c]) unless, within fifteen [15] business days of receipt of the claim, the insurer requests additional verification (see 11 NYCRR 65-3.5[b]). In addition, it is well settled that an insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65-3.8[b][3];. Central Suffolk Hosp. v. New York Central mutual Fire Insurance Company, 24 AD3d 492; Hospital for Joint Diseases v. State Farm Mutual Automobile Insurance Company, 8 AD3d 533; St. Vincent’s Hospital of Richmond v. American Transit Insurance Company, 299 AD2d 338).

The Court finds that the plaintiff has failed to make out a prima facie case for judgment as to the first six dates of service listed above. To the extent that the Safir affidavit is silent as to the date the various claims herein were mailed to the defendant, defendant’s denial of claim forms (annexed to the Safir affidavit as Exhibits B) indicate the dates on which the claims were received, and adequately establish that plaintiff sent, and that defendant received, these claims (see Ultra Diagnostics Imaging v Liberty Mutual Ins. Co., 9 Misc 3d 97, 98 [App Term, 2d Dept 2005]). These same documents however also demonstrate that each of the first six claims was partially paid and partially denied, except for the fifth claim for $604.24 for services rendered on May 16, 2006, which was fully denied based upon a peer review, within thirty (30) days of their receipt. The affidavits in opposition of Megan Wolfe and Cindy Herdter, Geico claims representatives, dated August 21, 2007, confirm these facts.

As to the timely partial denials based upon a dispute as to the proper fee schedule, the first, second, third, fourth, and sixth above listed claims, a question of fact exists as to the proper fee to be charged and paid. Accordingly, summary judgment is denied as to these claims.

The plaintiff has failed to reply with medical evidence regarding the fifth claim, denied in full based upon a peer review report, and summary judgment is therefore granted to the defendant as to that claim.

As to the last six claims submitted for the period June 1, 2006 and thereafter (claims 7-12), the evidence demonstrates that timely first and second requests for verification were mailed to the plaintiff and received. These were never fully responded to. In addition, and for the reasons set forth below, defendant has demonstrated its right to summary judgment as to these claims.

11 NYCRR 65-3.8(f) provides:

An insurer shall be entitled to receive proper proof of claim and a failure to observe any of the time frames specified in this section shall not prevent an insurer from requiring proper proof of claim. [*3]

The proof of claim to which the defendant is entitled includes any requested EUO. (11 NYCRR 65-3.8[a][1]). Even a late request for additional verification is not invalid, but merely shortens the time within which the claim must be denied once the requested verification is received and the toll created by the verification request is lifted (Nyack Hosp. v. General Motors Acceptance Corp., 27 AD3d 96). An insurer is under no obligation to deny a claim before the requested verification is received (Central Suffolk Hosp. v. New York Cent. Mutual Fire Insurance Company, 24 AD3d 492), and its time to pay or deny a claim does not begin to run again until its receipt of the requested verification (Nyack Hospital v. Progressive Casualty Insurance Company, 296 AD2d 482).

As to the last six claims for services which are the subject of this summary judgment motion, the above mentioned affidavits of Megan Wolfe and Cindy Herdter, sworn to on August 21, 2007, and attached to the moving papers together with other documents, including the denials issued herein, also satisfy the business record exception to the hearsay rule and establishes that timely verification requests and delay letters were mailed to plaintiff and received by it which tolled the running of the thirty day period in which an insurer must normally pay or deny a claim (11 NYCRR 65-3.8[a][1]), and that timely requests for an Examination Under Oath (EUO) were made as to each of the last six claims herein. The provider was first requested to appear at the offices of counsel for the defendant in Woodbury, New York on October 4, 2006 to be examined with respect to 21 separate patients, including Mr. Ruiz.

On September 28, 2006, Dr. Braver wrote to counsel for the defendant, allegedly agreeing to appear for an EUO, but with conditions, including that the appearance be adjourned to a Friday and that the examination be conducted in Brooklyn. He further demanded that he be provided a list of questions, that he be paid an attendance fee of $1,400 per day, and that he testify on 21 separate days, a separate day for each patient. He did not object to the date, other than it was not a Friday, and did not appear on October 4, 2006. On October 3, 2006 the defendant wrote to plaintiff setting forth, as per plaintiff’s request, a new date, Friday, October 20, 2006, and agreeing to hold the examination in Brooklyn, but requesting that the one day examination cover each of the patients with pending claims. On October 10, 2006, the plaintiff again wrote to the defendant’s counsel, insisting that he be paid $1,400 per day and that he testify as to no more than one patient per day. He did not appear on October 20, 2006. Finally, on December 12, 2006, counsel for the defendant wrote to the plaintiff requesting that he select a single convenient date in January, 2007 on which to testify as to each pending claim. On January 10, 2007, plaintiff allegedly wrote to the defendant, allegedly agreeing to appear for the requested EUO, but still refusing to appear for a global examination. Defendant claims not to have received this letter, and on February 21 and 22, 2007, defendant denied each of these six claims, citing the doctor’s conviction and license suspension, and his failure to submit to an EUO.

The no-fault claimant is required to cooperate in good faith with the insurer in the investigation of its claim (Dilon Medical Supply Corp. v. Travelers Ins. Co., 7 Misc 3d 927). This the plaintiff has utterly failed to do. While on the surface appearing to agree to appear for an EUO, the plaintiff imposed such an absurd condition, namely that he be paid $1,400.00 twenty-one (21) separate times to appear on twenty-one (21) separate days, for an examination which defendant was prepared to complete in a single day. This would have necessitated the [*4]defendant spending $29,400.00 to obtain the verification information to which it was legally entitled. Nothing in the regulations permit the imposition of such a condition upon an insurer and the Court finds that Dr. Braver’s conduct was nothing more than an arrogant and transparent attempt to deprive the defendant of the information to which it was entitled. Such conduct constituted a refusal to provide appropriate verification information and accordingly the defendant’s time within which to pay or deny the claim never ran out (Nyack Hospital v. Progressive Casualty Insurance Company, supra ; Westchester Medical Center v. Mercury Cas. Co., —- NYS2d ——, 2008 WL 2939450 June 27, 2008). The last six claims were therefore not overdue and plaintiff’s action is premature as to them. Accordingly, the Court concludes that defendant is entitled to summary judgment as a matter of law and the complaint is dismissed as to the last six claims listed above.

Were the court not dismissing these six claims on that basis, plaintiff’s motion would nevertheless be denied. Defendant also alleges, and plaintiff does not deny, that discovery is not complete in that it served various disclosure demands upon the plaintiff together with its answer to the complaint, which demands have never been responded to. This court agrees with the holding in Ostia Medical, PC. v. Government Employees Ins. Co., 1 Misc 3d 907(A) wherein that court held:

“…there is no discovery prohibition if litigation is chosen by a medical provider to recover no-fault benefits. Once again, the Court must state that the plaintiff elected to proceed by way of litigation in the Nassau County District Court and thus, it must comply with the discovery procedures set forth in the CPLR and the UDCA (see, UDCA §1101[a]; CPLR §3101; see also Albatros Medical P.C. v. GEICO, supra ).”

In order to defeat a motion for summary judgment on the ground that discovery is not complete, the movant must show that further discovery may raise triable issues of fact(LMK Psychological Services, P.C. v. Liberty Mut. Ins., 30 AD3d 727). Although not necessary to the determination of the plaintiff’s motion, defendant here has met that burden. The plaintiff has not yet been fully examined concerning his refusal to submit to an EUO. In addition, the affidavit submitted in support of plaintiff’s motion, regarding the plaintiff’s billing and mailing procedures, is provided by the very same person who plaintiff alleged, as part of his defense at his license suspension hearing, was responsible for the billing “errors” for which he was prosecuted. This would obviously be fertile ground for examination as well. Therefore, if the Court were not granting the defendant summary judgment, it would nevertheless deny plaintiff’s motion pursuant to CPLR §3212(f), grant the defendant’s motion pursuant to CPLR §3126, and dismiss the action unless plaintiff provided all outstanding discovery and submitted to an examination before trial within 30 days of the date of this decision.

Accordingly, the fifth and the last six claims herein (claims 7-12) are dismissed. Summary judgment is denied as to the first, second, third, fourth, and sixth claims herein.

The foregoing constitutes the decision and order of the Court.

SO ORDERED: [*5]

__________________________________

DISTRICT COURT JUDGE

Dated: November 24, 2008

cc: Law Office of Amos Weinberg

Law Office of Teresa M. Spina