July 1, 2015
AR Med. Rehabilitation v State-Wide Ins. Co. (2015 NY Slip Op 25287)
https://www.beynensonlaw.com/case-law/ar-med-rehabilitation-v-state-wide-ins-co-2015-ny-slip-op-25287/
- Judge
- Levine, J.
- Decided
- July 1, 2015
- Citation
- 2015 NY Slip Op 25287 · 49 Misc 3d 918
- Posture
- Trial
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Claimant's prima facie case at trial · Proof of mailing (see the maps)
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 AR Med. Rehabilitation v State-Wide Ins. Co. (2015 NY Slip Op 25287)
| AR Med. Rehabilitation v State-Wide Ins. Co. |
| 2015 NY Slip Op 25287 [49 Misc 3d 918] |
| July 1, 2015 |
| Levine, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 2, 2015 |
[*1]
| AR Medical Rehabilitation, as Assignee of Michelle Estrella and Others, Plaintiff, v State-Wide Insurance Company, Defendant. |
| AR Medical Rehabilitation, as Assignee of Wayne Cohen, Plaintiff, v State-Wide Insurance Company, Defendant. |
Civil Court of the City of New York, Kings County, July 1, 2015
APPEARANCES OF COUNSEL
Deirdre J. Tobin & Associates, Garden City, for defendant.
Gary Tsirelman P.C., Brooklyn (Stefan Belinfanti of counsel), for plaintiff.
{**49 Misc 3d at 919} OPINION OF THE COURT
Plaintiff AR Medical Rehabilitation P.C., a medical services provider, seeks to recover no-fault benefits for services it provided to its assignors. Defendant State-Wide Insurance Co. moves to dismiss the claim on the ground that plaintiff failed to establish its prima facie case by offering proof of mailing. The issue is whether a plaintiff may offer an NF-10 denial of claim form into evidence to prove that it mailed the subject claim form and that the insurer received it.
The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant [*2]received it, and that the no-fault benefits were overdue. (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011]; see New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648 [2d Dept 2014]; Lexington Acupuncture PC v MVAIC, Civ Ct, Kings County, 2012, index No. 13328/09; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2d Dept 2004].)
In Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498, 506 [2015]), the Court of Appeals affirmed the aforementioned precedent, stating that in a no-fault summary judgment motion where benefits are overdue, the plaintiff must prove that the “statutory claim forms were mailed to and received by the insurer,” citing with approval New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. Amplifying on this standard, the Court ruled that a medical provider must “submit proof of mailing through evidence in admissible form,” which proof may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business.” (Id. at 507.)
{**49 Misc 3d at 920}In affirming the Second Department holding, the Court of Appeals also upheld the lower court’s holding that the burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed. (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 45 [2d Dept 2013]; see also NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043, 1043-1044 [2d Dept 2011] [Plaintiff established its prima facie case by submitting, among other things, the certified mail receipt, and the signed return receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“The presumption (of mailing) may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed”].) The Court of Appeals emphasized that affidavits in support of the motion for summary judgment, which presumably would include affidavits of mailing, must fall within the business record exception in CPLR 4518 to the rule against hearsay.
Neither the Court of Appeals nor the Second Department in Viviane Etienne addressed whether at trial a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer. Prior to Viviane Etienne, the Appellate Term, Second Department found that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to establish that the claim form was sent by the medical provider and received by the insurer. (See Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50343[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Accessible & Advance Med. P.C. v Allstate Ins. Co., 12 Misc 3d 147[A], 2006 NY Slip Op 51599[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U], {**49 Misc 3d at 921} *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also AR Med. Rehabilitation, P.C. v State-Wide Ins. Co., 47 Misc 3d 1215[A], 2015 NY Slip Op 50631[U] [Civ Ct, Kings County 2015].) This is because plaintiff is not trying to use the denial as its own business record pursuant to CPLR 4518 (a) but rather as an admission by defendant that the claim form has been received. (Eagle Surgical, 2014 NY Slip Op 50343[U], *1; EMC Health Prods., 2014 NY Slip Op 50786[U], *1 [“Defendant’s denials admitted the receipt of the bills at issue . . . and plaintiff was not required to establish a CPLR 4518 foundation for the bills”]; King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 770 [Civ Ct, Kings County 2004].)
Accordingly, a plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of the defendant’s denial form indicating when defendant received the claim and when it denied it. (Oleg Barshay; King’s Med. Supply at 770.) The Viviane Etienne ruling does not alter this equation since the NF-10 is not being admitted for the truth of the matters asserted therein and therefore does not need to fall within the business records exception delineated in the Etienne decisions.
In light of the above, the court finds that plaintiff’s submission into evidence of the NF-10 denial is sufficient to establish that defendant received the claim. Plaintiff therefore established its prima facie case. As defendant did not present any witnesses to establish its defense, judgment is awarded to plaintiff.
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.
What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?
This decision: Claimant's trial proof held to make out its prima facie case
Held the provider established its prima facie case at trial by putting in the insurer's denial form, an admission of receipt that need not satisfy the business-records exception.
Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response
Held that the insurer's NF-10 denial, offered as an admission rather than a business record, sufficed to establish that the insurer received the provider's claim, so no proof of mailing procedure was needed.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747)The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny.
- New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. (2014 NY Slip Op 00639)Outstanding verification warranted dismissal of the first cause of action, but defective verification proof supported payment on the second.
- 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.
- 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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) DistinguishedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
- NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)The insurer's denial was fatally defective because it omitted required information and named the assignor as the benefits applicant.
- Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 50343(U)) FollowedA provider may use an insurer's denial as an admission that the insurer received the claim referenced in it.
- EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U)) FollowedThe insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
- Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51672(U))The insurer's adjuster affidavits failed to establish timely mailing of denials, precluding its defenses.
- AR Med. Rehabilitation, P.C. v State-Wide Ins. Co. (2015 NY Slip Op 50631(U))A provider may prove submission and receipt of no-fault claims at trial through the insurer's witness and denial forms.
- King’s Med. Supply Inc. v Country-Wide Ins. Co. (2004 NY Slip Op 24394) FollowedA medical supplier need not prove documented cost as part of its prima facie no-fault case.
Cited by
A label shows how the later decision treated this one.
- Jiang Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50945(U)) FollowedThe insurer's IME no-show defense failed because the examinations were not timely scheduled under 11 NYCRR 65-3.5 (d).
Similar decisions
- Alleviation Med. Servs., PC v Hertz Co. (2015 NY Slip Op 25285)A provider may establish claim submission and receipt through admissions in denials annexed to the defendant's interrogatory response.
- Bajaj v General Assur. (2007 NY Slip Op 27487)An insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2011 NY Slip Op 21039)The provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation.
- Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145)The provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
- Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2025 NY Slip Op 06648)An insurer's admission in its motion papers that it received the claim may establish a provider's prima facie case at trial.