June 8, 2009

Bath Med. Supply, Inc. v Country Wide Ins. Co. (2009 NY Slip Op 51145(U))

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-country-wide-ins-co-2009-ny-slip-op51145u/

Court: Appellate Term, Second Department
Decided: June 8, 2009
Citation: 2009 NY Slip Op 51145(U) · 23 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Medical necessity Provider's prima facie case
Legal questions: Proof of mailing · Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Bath Med. Supply, Inc. v Country Wide Ins. Co., 23 Misc 3d 147(A), 2009 NY Slip Op 51145(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 established verification tolling and timely denials, and its peer review raised a factual issue concerning medical necessity. The provider established mailing through its billing manager's personal knowledge and admissible claim forms under CPLR 4518. The insurer's litigation supervisor detailed an office practice establishing timely mailing of verification requests and denials. Different final-verification dates on the unsworn denial forms did not contradict the affidavit's dates for initial requests, receipt of verification, and mailing of denials or defeat tolling of the 30-day period. The affirmed peer review supplied a medical-necessity issue for trial. The Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, and denied the provider's motion.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Country Wide Ins. Co. (2009 NY Slip Op 51145(U))

[*1]

Bath Med. Supply, Inc. v Country Wide Ins. Co.

2009 NY Slip Op 51145(U) [23 Misc 3d 147(A)]

Decided on June 8, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-686 Q C.

Bath Medical Supply, Inc. as assignee of CHARLES E. BODDY, Respondent,
against
Country Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 11, 2008, deemed from a judgment of the same court entered March 31, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 11, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,101.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion denied.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it had timely denied the claims on the ground that the supplies provided were not medically necessary. The Civil Court granted plaintiff’s motion, holding that defendant failed to establish that the verification requests which preceded defendant’s denials were properly issued, so that defendant’s denials were untimely. The instant appeal by defendant ensued. A judgment in favor of plaintiff was subsequently entered.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established the mailing of the claims in question since she stated that she had personally mailed the claims on February 10, 2005 (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff made out its prima facie entitlement to summary judgment. [*2]

However, the Civil Court erred in finding that defendant failed to properly toll the prescribed 30-day period, since the affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the verification requests by setting forth a detailed description of the standard office practice and procedure used to ensure that the verification requests were properly addressed and mailed (see Residential Holding Corp., 286 AD2d 679). For the same reason, the affidavit also established the timely mailing of defendant’s denial of claim forms (id.).

Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth different dates as the dates on which final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled. As a result, inasmuch as the affirmed peer review report was sufficient to demonstrate the existence of an issue of fact as to the medical necessity of the supplies plaintiff furnished, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer's litigation supervisor's detailed description of standard office practice established timely mailing of its verification requests and denials, so the 30-day period was tolled and the denials were timely.

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

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Lack of medical necessity

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

This decision: Insurer's proof was enough to defeat the provider's motion but not to win

Held the insurer's affirmed peer review report raised a triable issue of fact as to medical necessity of the supplies, so the provider's summary judgment motion was denied.

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, 67 (this one included) are in the same category.

Claimant's prima facie case on motions

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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 made its prima facie case because its billing manager personally mailed the claims and her affidavit established the claim forms as admissible business records.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

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

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

New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) Contrasted (cf., but see)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Similar decisions

Bath Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 52316(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery.
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50347(U))The insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity.
Bath Med. Supply, Inc. v Allstate Indem. Co. (2006 NY Slip Op 52273(U))The insurer's mailing affidavit was inadmissible under CPLR 2309 (c), precluding its medical-necessity defense for lack of timely denial proof.
Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.
Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014)An omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced.