May 19, 2006
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51036(U))
https://www.beynensonlaw.com/case-law/a-m-med-servs-p-c-v-progressive-cas-ins-co-2006-ny-slip-op-51036u/
- Decided
- May 19, 2006
- Citation
- 2006 NY Slip Op 51036(U) · 12 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51036(U))
| A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. |
| 2006 NY Slip Op 51036(U) [12 Misc 3d 129(A)] |
| Decided on May 19, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2005-926 Q C. NO. 2005-926 Q C
against
Progressive Casualty Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 20, 2004. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
Order affirmed without costs.
Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor. Plaintiff established its prima facie entitlement to summary judgment by showing that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).
The defendant was required to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) unless such period was tolled through verification requests. The defendant timely sent plaintiff a verification request in which it requested the name and license of the person rendering the treatment (11 NYCRR 65-3.6 [b]). The plaintiff’s attorney sent defendant a letter which stated that the requested information was attached. Defendant alleges that it did not receive the requested verification and that it therefore mailed plaintiff’s attorney a follow-up verification request seeking such information, which information plaintiff has yet to provide. The defendant failed to establish that the 30-day period was tolled by the second verification request it allegedly mailed to plaintiff’s attorney since it failed to submit, in admissible form, any proof of mailing of said request or an affidavit from one with personal knowledge that the request was sent to plaintiff’s attorney (see e.g. Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613 [1996]). The affidavit of defendant’s litigation specialist was [*2]insufficient to establish proper mailing since there is no allegation by her that she personally mailed the claim, and the affidavit did not 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 Hertz Corp., 9 AD3d 392 [2004]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). In view of the foregoing, defendant failed to pay or deny the claim within the 30-day claim determination period and plaintiff’s motion for summary judgment was properly granted.
Rios and Belen, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
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 am constrained to agree 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.
Decision Date: May 19, 2006
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the litigation specialist's affidavit did not prove mailing of the follow-up verification request because she did not mail it herself and gave no sufficiently detailed standard office mailing procedure.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient
Rejected the insurer's claim that verification remained outstanding because it failed to prove mailing of its follow-up request, so the 30-day period was not tolled and the claim was overdue.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established prima facie entitlement by showing it submitted the statutory claim form stating the fact and amount of loss and that payment was overdue.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
- Hospital for Joint Diseases v Hertz Corp. (2004 NY Slip Op 06025)The defendants offered no evidence of a timely denial or of their asserted lack of causal relation between the accident, injury, and treatment.
- New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
Similar decisions
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
- Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))The insurer failed to prove timely mailing of verification requests and therefore failed to establish a toll of the claim determination period.
- AKS Med., P.C. v Progressive Ins. Co. (2009 NY Slip Op 51494(U))The provider failed to prove claim submission because its billing-manager affidavit contradicted the post office ledger on which it relied.
- Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50500(U))The provider's action was premature because its incomplete assignment left the insurer's verification requests unsatisfied.
- A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51044(U))The provider's W-2 forms did not establish employment when services were rendered by professionals listed as independent contractors.