November 6, 2007

All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 27458)

https://www.beynensonlaw.com/case-law/all-boro-med-supplies-inc-v-progressive-northeastern-ins-co-2007-ny-slip-op-27458/

Court: Civil Court of the City of New York, Kings County
Judge: Edwards, J.
Decided: November 6, 2007
Citation: 2007 NY Slip Op 27458 · 17 Misc 3d 950
Posture: Trial
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 1 later decisions (see Cited by)
Issues: Timeliness and preclusion Verification requests Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 17 Misc 3d 950 (Civ Ct, Kings County 2007)

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.

The insurer failed to prove timely mailing of verification requests or lack of medical necessity for the prescribed equipment. After a bench trial, the Civil Court, Kings County, found that the insurer's payment-or-denial period was never tolled because no evidence established timely mailing of verification requests. The court applied the 30-day medical-examination period in 11 NYCRR 65-3.5 (d) to EUOs but denied the provider's scheduling motion because receipt-date evidence was missing. Alternatively, the peer review physician's preference against recommending the equipment did not establish lack of medical necessity, particularly where the physician acknowledged it was not contrary to accepted medical protocol. The provider obtained judgment, statutory interest, and attorney fees.

Reported in New York Official Reports at All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 27458)

All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co.

2007 NY Slip Op 27458 [17 Misc 3d 950]

November 6, 2007

Edwards, J.

Civil Court Of The City Of New York, Kings County

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

As corrected through Wednesday, December 26, 2007

[*1]

All-Boro Medical Supplies, Inc., as Assignee of Debra Brady, Plaintiff,
v
Progressive Northeastern Ins. Co., Defendant.

Civil Court of the City of New York, Kings County, November 6, 2007

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Kim Rasin of counsel), for plaintiff. De Martini & Yi, Williston Park (Dana M. Koos of counsel), for defendant.

{**17 Misc 3d at 950} OPINION OF THE COURT

Genine D. Edwards, J.

{**17 Misc 3d at 951}At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff’s prima facie case was established, the defendant’s denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant’s witness was an expert. The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.; the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with a case with the index number 19685/06, regarding assignor Connie Brady, this court, via correspondence dated August 7, 2007, required the parties to submit posttrial memoranda with respect to plaintiff’s motion in limine regarding the time for scheduling an examination under oath. Plaintiff’s memorandum was due on September 11, 2007 and defendant’s memorandum was due on October 11, 2007. Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff’s motion in limine be denied for failure to comply with this court’s briefing schedule.

The plaintiff orally argues that the defendant’s request for an examination under oath did not toll defendant’s time to pay or deny plaintiff’s claims because the examination under oath was scheduled more than 30 days after receipt of the claim. Plaintiff relies on Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) and S & M Supply v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]). Defendant counters that Regulations § 65-3.5 (d) only relates to medical examinations, while subdivision (e) instructs as to examinations under oath. The defendant argues that subdivision (e) does not direct a date certain or a specific time to schedule the examination under oath; the subdivision only discusses a reasonable time and place for such examination.

After due deliberation of the evidence and arguments asserted, this court finds that the plaintiff’s contentions are correct. Although case law directly on point could not be found, this court must be guided by the legislative intent to resolve no-fault matters expeditiously. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Fair Price Med. Supply [*2]Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term,{**17 Misc 3d at 952} 2d & 11th Jud Dists 2005]; Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [Civ Ct, Queens County 2005].) Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; S & M Supply, supra.)

However, the plaintiff failed to offer any evidence as to when it received the verification forms. Thus, this court cannot determine whether the examinations were scheduled within the requisite time period. Therefore, plaintiff’s motion is denied.

Since the parties stipulated that plaintiff’s prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact. The defendant fails at its burden. There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests. (Mega Supply & Billing, Inc. v AIU Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50687[U] [App Term, 2d & 11th Jud Dists 2007]; Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 144[A], 2007 NY Slip Op 50394[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]; Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists 2005].) Hence, defendant’s time to pay or deny the plaintiff’s claims was never tolled.

Assuming, arguendo, that the defendant met its initial burden of timely mailing, this court finds that the defendant’s expert’s testimony was unpersuasive. Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases. This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822 for each case, as well as statutory interest and attorney’s fees.

Legal questions (2)

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.

Proof of mailing

Open the full map

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 insurer offered no evidence that it timely mailed its verification requests, so its time to pay or deny was never tolled.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited) (rules on the question, but another ground decided the case)

Held in the alternative after trial that the insurer's peer reviewer failed to prove the equipment unnecessary, because he conceded it was not against accepted medical protocol and said only he would not have recommended it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50693(U)) FollowedThe insurer's EUO defense was precluded by untimely denials, and its accident-fraud evidence was inadmissible.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (2004 NY Slip Op 08087)MVAIC must comply with the 30-day deadline to pay or deny a no-fault claim before qualifying the injured claimant.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2005 NY Slip Op 25343)An insurer's untimely denial precludes a defense that the provider billed for medical supplies never furnished after a covered accident.
Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 25063)An insurer moving to compel no-fault discovery must supply its denial or verification demand, absent a compelling reason for omission.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
Mega Supply & Billing, Inc. v AIU Ins. Co. (2007 NY Slip Op 50687(U))The insurer failed to raise a triable issue on its EUO nonappearance defense because it did not prove mailing of the scheduling letters.
Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U))The insurer failed to prove mailing of EUO requests or a founded belief that the injuries arose outside a covered incident.
Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496)A provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52266(U))The insurer's unproved mailing of EUO requests left its denial untimely and precluded its excessive-billing and medical-necessity fraud defense.
Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U))The insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.

Cited by

A label shows how the later decision treated this one.

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28342) Contrasted (cf., but see)The 30-day examination deadline in 11 NYCRR 65-3.5 (d) does not apply to EUOs. The provider challenged summary judgment dismissing its claims because the initial EUO was set more than 30 days after receipt of the claim.
All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 28207) FollowedA preclaim EUO set beyond 30 days after claim receipt must be rescheduled within that period to support a nonappearance defense.

Similar decisions

Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.
Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (2006 NY Slip Op 52479(U))The insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial.
D & R Med. Supply v Progressive Ins. Co. (2009 NY Slip Op 29139)A provider need not supply verification materials outside its possession, custody or control after advising the insurer that it lacks them.
Sea Side Med., P.C. v State Farm Mut. Auto Ins. Co. (2006 NY Slip Op 26246)A verification follow-up sent only 28 days after the initial request does not preserve the insurer's time to pay or deny a claim.
I & B Surgical Supply v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27159)The provider's late cross motion and opposition were improperly considered because the insurer lacked an opportunity to respond.