July 9, 2009
Davydov v Progressive Ins. Co. (2009 NY Slip Op 29299)
https://www.beynensonlaw.com/case-law/davydov-v-progressive-ins-co-2009-ny-slip-op-29299/
- Decided
- July 9, 2009
- Citation
- 2009 NY Slip Op 29299 · 25 Misc 3d 19
- Posture
- Trial
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 3 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 Davydov v Progressive Ins. Co. (2009 NY Slip Op 29299)
| Davydov v Progressive Ins. Co. |
| 2009 NY Slip Op 29299 [25 Misc 3d 19] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, October 21, 2009 |
[*1]
| Albert Davydov, D.D.S., as Assignee of Slikia Martinez, Respondent, v Progressive Insurance Company, Appellant. |
Supreme Court, Appellate Term, Second Department, July 9, 2009
APPEARANCES OF COUNSEL
Short & Billy, P.C., New York City (Skip Short of counsel), for appellant. Cohen & Jaffe, LLP, Lake Success, for respondent.
{**25 Misc 3d at 20} OPINION OF THE COURT
Memorandum.
Judgment affirmed without costs.
Plaintiff Dr. Albert Davydov, DDS, commenced the instant action to recover assigned first-party no-fault benefits for dental services rendered. After a nonjury trial, the Civil Court rendered a decision in favor of plaintiff in the principal sum of $6,569.27. This appeal by defendant ensued. A judgment was subsequently entered.
Defendant’s contention that plaintiff lacks standing since the assignment of the no-fault benefits executed by plaintiff’s assignor was in favor of Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS is without merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, defendant is now precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008]).
A provider establishes a prima facie entitlement to judgment as a matter of law by submitting proof that the prescribed statutory billing forms were mailed and received, and that [*2]payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742{**25 Misc 3d at 21} [2004]). In the instant case, Dr. Davydov’s testimony and the exhibits admitted into evidence were sufficient to satisfy plaintiff’s burden. Contrary to defendant’s contention, the elements of a prima facie case to recover assigned first-party no-fault benefits do not differ based upon the nature of the services provided by the plaintiff provider (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129 [2008]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Mary Immaculate Hosp., 5 AD3d 742 [2004]).
Defendant contends that the trial court improperly curtailed defendant’s cross-examination and direct examination of Dr. Davydov. Defense counsel attempted to question Dr. Davydov regarding the medical necessity of the services rendered and whether the amount charged exceeded the amount set forth in the fee schedule. Since the parties did not stipulate to the timeliness of the denials, it was defendant’s burden to establish that it timely denied plaintiff’s claims so as to demonstrate that defendant’s proffered defenses were not precluded. Inasmuch as defendant called no witnesses and presented no evidence to show that its denials were timely mailed, defendant failed to establish that said defenses were not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly curtailed examination of the witness with respect thereto.
Accordingly, the judgment is affirmed.
Golia, J. (dissenting and voting to reverse the judgment and dismiss the complaint in the following memorandum). I find that plaintiff Dr. Albert Davydov, DDS was without standing to prosecute the instant proceeding. I conclude, contrary to the holding by the majority, that the factual circumstances of the instant matter are inapposite to the Court of Appeals’ holding in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312 [2007]).
In Hospital for Joint Diseases, the plaintiff medical provider submitted a claim form along with an assignment of benefits form that did not contain any signature, but which stated that the patient’s signature was “on file.” The insurance carrier in that case did not ask for further verification or demand a copy of the original document containing the signature that was purportedly “on file.” It eventually denied the claim on the{**25 Misc 3d at 22} grounds that such assignment was invalid and therefore the plaintiff did not have standing to prosecute the claim. The Court of Appeals held that inasmuch as the carrier was precluded from raising any affirmative defense as to the validity of the assignment of benefits form due to its failure to timely seek verification, it could not now contest the validity of such assignment. Therefore, the plaintiff therein had standing to bring the action and the assignment was deemed to be valid.
There is, however, a vitally important difference between that case and this one. In Hospital for Joint Diseases, the assignment of benefits form was drawn to the benefit of the [*3]plaintiff “Hospital for Joint Diseases,” whereas in the present case the subject assignment of benefits form is drawn to the benefit of an entirely different entity than this plaintiff who now seeks to benefit from the assignment.
In that case, the Court of Appeals found the assignment cannot be assailed and must be deemed valid. In this case, in light of defendant’s failure to seek appropriate verification, I do not suggest that the subject assignment of benefits form was not valid. Quite the contrary, I accept its validity. Nevertheless, I take exception to the holding of the majority inasmuch as the “valid” assignment of benefits form does not inure to the benefit of the person who is prosecuting this claim, to wit: the named plaintiff herein, Dr. Albert Davydov, DDS, individually.
To overlook this important distinction would be to say that “John Jones,” the Chairman of the Board of the Hospital for Joint Diseases, could properly demand that Travelers Property and Casualty Insurance Company make payment to his personal account merely because the carrier chose not to seek a verification of an assignment made to the benefit of the Hospital for Joint Diseases.
This court should not discount the important distinction that the assignee and the claimant are two very different and independent entities simply because the individual plaintiff/claimant is Dr. Albert Davydov, DDS and the assignee is named Dr. Albert Davydov, DDS, P.C. I would suggest that Dr. Davydov himself would argue vociferously that he as an individual has no obligation to pay the debts or expenses that might be incurred by Dr. Albert Davydov, DDS, P.C. and vice versa. That would be his right, for which fault would not attend. However, since he has chosen to conduct his business affairs in a corporate status, he cannot now choose to prosecute the claims of that corporate entity in favor of himself individually.{**25 Misc 3d at 23}
There is only one assignee herein and that assignee is not the plaintiff.
Pesce, P.J., and Weston, J., concur; Golia, J., dissents in a separate memorandum.
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.
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 at trial that the dentist's testimony and exhibits proved the billing forms were mailed and received and payment was overdue, rejecting the argument that the elements differ by type of service.
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. One decision in other departments that cites or is cited by this one is on the full map.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground
Held the insurer precluded from arguing that the assignment ran to the doctor's professional corporation rather than the individual plaintiff, because the defect was apparent on the form and the insurer neither sought verification nor denied on that ground.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on 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 (rules on the question, but another ground decided the case)
Held the insurer, which called no witnesses and offered no evidence that its denials were timely mailed, failed to show its defenses were not precluded.
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. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067) FollowedAn insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
- P.L.P. Acupuncture, P.C. v Travelers Indem. Co. (2008 NY Slip Op 50484(U)) FollowedThe insurers' admission of receipt defeated their challenge to the provider's proof that its no-fault claims were mailed and received.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Globe Surgical Supply v GEICO Ins. Co. (2008 NY Slip Op 10583) FollowedThe provider's class certification motion was denied for inadequate representation, but renewal remained available.
- A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) FollowedAn insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
- Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. (2007 NY Slip Op 27088) FollowedThe insurer failed to prove timely mailing of its denials and was precluded from asserting lack of medical necessity on three claims.
Cited by
A label shows how the later decision treated this one.
- Bedford Park Neurology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52634(U)) Contrasted (cf., but see)A provider may not correct a claim form identifying a different claimant once litigation has commenced.
- Speciality Surgical Servs. v Travelers Ins. Co. (2010 NY Slip Op 50715(U)) FollowedThe insurer's unrebutted medical testimony and affirmed peer review report established that the services were not medically necessary.
- Alev Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 50813(U)) FollowedAn insurer may not obtain discovery concerning defenses that are precluded and cannot be raised at trial.
- V.S. Med. Servs., P.C. v Travelers Ins. Co. (2013 NY Slip Op 50973(U)) FollowedThe provider failed to identify the claims sued upon or prove they remained unpaid, so it did not establish a prima facie case at trial.
Similar decisions
- A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
- Medwide Med. Supply Inc. v Country-Wide Ins. Co. (2005 NYSlipOp 51078(U))The insurer's defenses failed because one denial was late, its medical reviews were incompetent, and assignment objections were waived.
- A.B. Med. Servs. PLLC v Peerless Ins. Co. (2006 NY Slip Op 26318)A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials.
- Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
- A.B. Med. Servs. PLLC v USAA Gen. Indem. Co. (2005 NY Slip Op 25297)A provider's election to arbitrate no-fault claims does not bar another provider from litigating claims arising from the same accident.