October 29, 2020
Bronx Chiropractic Rehabilitation, P.C. v Progressive Ins. Co. (2020 NY Slip Op 20285)
https://www.beynensonlaw.com/case-law/bronx-chiropractic-rehabilitation-p-c-v-progressive-ins-co-2020-ny-slip-op-20285/
- Judge
- Mallafre Melendez, J.
- Decided
- October 29, 2020
- Citation
- 2020 NY Slip Op 20285 · 70 Misc 3d 361
- 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 Bronx Chiropractic Rehabilitation, P.C. v Progressive Ins. Co. (2020 NY Slip Op 20285)
| Bronx Chiropractic Rehabilitation, P.C. v Progressive Ins. Co. |
| 2020 NY Slip Op 20285 [70 Misc 3d 361] |
| October 29, 2020 |
| Mallafre Melendez, 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, January 27, 2021 |
[*1]
| Bronx Chiropractic Rehabilitation, P.C., as Assignee of David Jean-Louis, Plaintiff, v Progressive Insurance Company, Defendant. |
Civil Court of the City of New York, Kings County, October 29, 2020
APPEARANCES OF COUNSEL
The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.
The Law Offices of Perry & Frankson, North New Hyde Park (Erin L. McFadzen of counsel), for defendant.
{**70 Misc 3d at 362} OPINION OF THE COURT
In this no-fault action seeking reimbursement for medical services, plaintiff medical provider moves, inter alia, for an order granting summary judgment pursuant to CPLR 3212. Defendant insurer also moves, inter alia, for summary judgment pursuant to CPLR 3212.
The court finds that plaintiff established its prima facie showing of entitlement to summary judgment. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, in support of its motion, plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C., in which he establishes that the claim forms had been timely and properly mailed to defendant (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2013]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d [*2]320 [1986]).
The court finds that defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion and to establish their own entitlement to summary judgment pursuant to CPLR 3212. Defendant asserts that they properly denied plaintiff’s claims for failure to provide a requested verification within 120 days of the initial request and that plaintiff’s case must be dismissed as premature. However, defendant fails to submit adequate evidence in support of their requests for verification. Defendant relies on attached copies of the verification request letters as well as the affidavit of their litigation representative, Joseph M. Andre, who establishes mailing of the letters. In the verification request letters at issue, defendant states that they requested that the assignor provide a recorded statement via a scheduled phone call. Defendant claims that the assignor failed to respond to the calls they scheduled in all three verification request letters.[FN*] Accordingly, defendant asserts that dismissal {**70 Misc 3d at 363}of plaintiff’s case is appropriate based on outstanding verification.
However, based on the language contained in the verification request letters, defendant was required to call the assignor on a certain date, at a certain time, to a certain telephone number in order to obtain the requested information: “In order to determine your eligibility for benefits, all benefits remain delayed pending your cooperation with our request for a recorded statement. You will be contacted at the number below to provide a statement on the date and time indicated.” (Emphasis added.)
Although defendant established that the verification requests were mailed, they failed to establish that a representative placed the phone call which they claim the assignor failed to answer on each of the scheduled dates. As a result, the verification requests are incomplete.
In a similar Appellate Term case, Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., the defendant insurer also denied the plaintiff’s claim based on outstanding verification (13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The Appellate Term found that the defendant insurer failed to submit adequate proof to support their claim of mailing the verification requests. As a result of this evidentiary deficiency, the Appellate Term found that the defendant’s time to pay or deny the claim was not tolled and their denials were untimely.
Although there is no case that addresses the specific issue herein, the reasoning in Dilon is applicable to the issue of inadequate proof of verification. Here, while defendant establishes the mailing of the verification requests, they do not establish the substantive portion of the verification inquiry. Thus, the incomplete verification requests did not toll defendant’s time to pay or deny the claim and defendant is “precluded from raising most defenses as a result of its untimely denial” (Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U], *2). Accordingly, defendant both fails to meet their own prima facie burden for summary judgment and raise an issue of fact in opposition to plaintiff’s motion based on its outstanding verification argument (see Zuckerman v City of New York, 49 NY2d 557 [1980];{**70 Misc 3d at 364} St. Anna Wellcare, P.C. v GEICO Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50948[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
[*3]Based on the foregoing, plaintiff’s motion for summary judgment pursuant to CPLR 3212 is granted. Defendant’s motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s case as premature is denied.
Footnotes
Footnote *:In the first verification letter, the recorded phone statement was scheduled to take place on May 16, 2016, at 10:00 a.m. On May 17, 2016, defendant mailed a second verification request letter scheduling a recorded phone statement to take place on May 30, 2016, at 10:00 a.m. On May 31, 2016, defendant mailed a third verification request scheduling a recorded phone statement to take place at 10:00 a.m. on June 10, 2016.
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 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
Held the recorded-statement verification requests did not toll the insurer's time because it failed to prove a representative placed the scheduled calls, so the requests were incomplete and the denial untimely.
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 made its prima facie showing through its owner's affidavit establishing that the claim forms were timely and properly mailed, shifting the burden to the insurer, which then failed to raise a triable issue.
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.
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 (rules on the question, but another ground decided the case)
Held the provider owner's affidavit established timely and proper mailing of the claim forms; the insurer's verification requests were also found mailed, but the result turned on their incomplete substance.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U)) FollowedThe insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others.
- Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52266(U)) FollowedThe insurer's unproved mailing of EUO requests left its denial untimely and precluded its excessive-billing and medical-necessity fraud defense.
- St. Anna Wellcare, P.C. v GEICO Ins. Co. (2017 NY Slip Op 50948(U)) FollowedThe insurer's summary judgment cross motion based on injuries not arising from a covered incident was denied on appeal.
Similar decisions
- Zwanger & Pesiri Radiology Group, LLP v Mapfre Ins. Co. (2017 NY Slip Op 50981(U))The insurer failed to establish proper mailing of verification requests and its denial, or that requested verification remained outstanding.
- Lenox Hill Radiology & MIA P.C. v Global Liberty Ins. (2008 NY Slip Op 28197)The provider's action was premature because it failed to supply properly requested verification concerning its MRI claims.
- Lenox Hill Radiology MIA, P.C. v American Tr. Ins. Co. (2008 NY Slip Op 28053)The insurer failed to establish timely verification requests because its affidavits omitted when it received the provider's bill.
- Clear Water Psychological Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 50847(U))The insurer's letters merely reported missing documents and did not establish proper verification requests warranting dismissal.
- Lenox Hill Radiology v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 50978(U))The insurer failed to prove mailing or a reasonable basis for verification demands after the provider supplied available MRI documentation.