March 2, 2005
Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. (2005 NY Slip Op 50254(U))
https://www.beynensonlaw.com/case-law/contemp-med-diag-treatment-p-c-v-government-employees-ins-co-2005-ny-slip-op-50254u/
- Decided
- March 2, 2005
- Citation
- 2005 NY Slip Op 50254(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1, contrasted (cf., but see) in 3 and followed in 6 later decisions (see Cited by)
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 Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. (2005 NY Slip Op 50254(U))
| Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. |
| 2005 NY Slip Op 50254(U) |
| Decided on March 2, 2005 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-524 K C
against
Government Employees Insurance Company, Appellant.
Appeal by defendant from an order of the Civil Court, Kings County (A. Schack, J.), entered November 24, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to dismiss, deemed an appeal from the judgment of the same court entered pursuant thereto on February 10, 2004, awarding plaintiff the principal sum of $3,268.85, plus statutory interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]).
Judgment unanimously affirmed without costs.
Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, it moved for summary judgment on the ground that defendant had failed to pay or deny its claims within 30 days of their receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). Plaintiff further alleged that defendant had failed to extend the statutory time period by issuing a timely verification request on the prescribed forms. A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]; see also Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant opposed plaintiff’s motion and cross-moved for summary judgment on the ground that it had sent timely letter requests for verification, which tolled the commencement of the 30-day period within which it was obligated to pay or deny the claim. The motion court found in favor of plaintiff, finding that defendant’s verification requests were not made on the prescribed forms, and therefore did not operate to toll the 30-day period.
We disagree with the lower court’s determination that a request for additional verification may not be made by letter and must be made on a prescribed form (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]; see also S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). However, we affirm the order, albeit for reasons other than those stated by the court below, on constraint of Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374 [2001]). The record on appeal in that case establishes that defendant insurer’s employee averred in his affidavit in opposition to plaintiff’s motion for summary judgment that “in the regular course of business at Nationwide, denial letters that are sent to the provider . . . are sent by regular mail on the day that the letter is dated.” Noting that the employee had no personal knowledge that the denial of claim form had been mailed on the date it was issued, the Appellate Division, Second Department, also found that the allegation regarding defendant’s office practices was conclusory and
insufficient to establish that the office followed practices which were geared to ensure the likelihood that denial of claim forms were always properly addressed and mailed on the date issued. Similarly, in the case at bar, the assertion of defendant’s no-fault claims examiner that it was “the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated” was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant’s opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the
30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra). [*3]Accordingly, plaintiff was entitled to summary judgment.
Decision Date: March 02, 2005
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 claims examiner's assertion that documents were customarily mailed the day generated conclusory, as it neither showed personal knowledge of mailing nor described a standard practice ensuring proper addressing and mailing.
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
Held the 30-day period was not tolled because the insurer failed to prove by competent evidence that its verification letters were timely mailed, although letter requests themselves would have been permissible.
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 its prima facie case by proof that it submitted the statutory claim forms setting forth the fact and amount of loss and that payment was overdue, shifting the burden to the insurer.
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.
- 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.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413)The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.
- S&m Supply Inc. v Lancer Ins. Co. (2004 NY Slip Op 50695(U)) FollowedThe insurer failed to establish an EUO policy endorsement or timely mailing of verification requests, so the 30-day claim period was not tolled.
Cited by (19)
A label shows how the later decision treated this one.
- Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51202(U)) DistinguishedThe insurer established timely mailing of verification requests, tolling the 30-day period and making its denials timely.
- D.A.V. Chiropractic P.C. v American Tr. Ins. Co. (2005 NYSlipOp 50609(U)) Contrasted (cf., but see)An insurer's timely denial and admissible proof of a reasonable pre-claim IME nonappearance rebut the presumption of medical necessity.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U)) Contrasted (cf., but see)The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U)) Contrasted (cf., but see)The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
- Summit Psychological, P.C. v General Assur. Co. (2005 NY Slip Op 25263) FollowedThe insurer failed to establish timely mailing of its denials or proper mailing of preclaim IME requests.
- Gribenko v Allstate Ins. Co. (2005 NYSlipOp 52201(U)) FollowedThe providers failed to establish submission of their claims because their affidavits did not adequately prove mailing.
- Harbor Med. & Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50378(U)) FollowedThe insurer failed to prove timely mailing of its denials and was precluded from asserting its medical-necessity defense.
- Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2005 NY Slip Op 50348(U)) FollowedThe insurer failed to prove mailing of verification requests and waived its assignment and medical-necessity objections.
- Function Supply v Progressive Ins. Co. (2005 NY Slip Op 51755(U)) FollowedThe insurer failed to establish timely mailing of verification requests, so the 30-day period to pay or deny was not tolled.
- Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (2006 NY Slip Op 52479(U)) FollowedThe insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial.
Show all 19 citing decisions
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)
- Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545)
- V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000)
- Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))
- Careplus Med. Supply Inc. v General Assur. Co. (2005 NY Slip Op 50429(U))
- Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772(U))
- Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))
- Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50860(U))
- Pro-Align Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50341(U))
Similar decisions
- Mid Atl. Med. P.C. v GEICO (2007 NY Slip Op 50014(U))The insurer established a timely verification request and denial, preserving a medical-necessity defense that raised a triable issue.
- Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50582(U))The insurer failed to establish an EUO-authorizing policy endorsement or proper EUO notices, leaving its denial untimely.
- Audobon Physical Med & Rehab, P.C. v GEICO Ins. Co. (2009 NY Slip Op 50456(U))The provider won summary judgment on its first cause of action because the insurer failed to prove mailing of IME requests or nonappearance.
- Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U))The provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.
- Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953)An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.