First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50149(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 25, 2008. The judgment, entered pursuant to an order of the same court entered April 30, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, so much of the order entered April 30, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second, third and fourth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied and the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification as to the claims underlying plaintiff’s second, third and fourth causes of action. Defendant also argued that it properly denied the claims underlying plaintiff’s first and fifth causes of action because plaintiff utilized the wrong billing code when it billed for such services. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification requests were sent [*2]to plaintiff prior to the expiration of 30 full days after the initial requests for verification and that defendant failed to provide legal or factual support to demonstrate that plaintiff was not entitled to summary judgment upon its first and fifth causes of action. A judgment was subsequently entered, and this appeal by defendant ensued.

Defendant contends that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. Contrary to defendant’s contention, the affidavit by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant’s argument that the affidavit of plaintiff’s billing manager was insufficient to establish that plaintiff had submitted the claims at issue to defendant lacks merit in light of the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by
” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (Kingsbrook Jewish Med. Ctr., 61 AD3d at 23).

Accordingly, the judgment is reversed, so much of the order entered April 30, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second, third and fourth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied and the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted on the ground that those causes of action are premature.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: January 29, 2010