Harbor Med. & Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50378(U))

Civil Court of the City of New York, Queens County

108007-02

Howard G. Lane, J.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors Sandra Dorsett and Sharon Little, pursuant to New York’s No-Fault Insurance Law § 5101 et. seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on its claims in the amount of $3,177.54, on the ground that defendant failed to pay or to deny its claims within the statutory 30-day period as required by Insurance Law section 5106 (a).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff maintains that it is entitled to summary judgment because the defendant failed to pay or deny the claims within thirty (30) days of receipt as required by the Insurance Law § 5106 (a). Plaintiff proved that it submitted a timely and proper notice of claim pursuant to the No-Fault statute for medical treatment rendered, which defendant acknowledged receiving, denying and not paying. (See, Capio Medical, P.C. ex rel. Berger v. Progressive Cas. Ins. Co., 7 Misc 3d 129(A), 2005 NY Slip Op 50526(U) [App Term 2nd and 11 th Jud. Dist.]; Park Health Center v. Prudential Insurance Co., 2001 WL 1803364 [App Term 2nd and 11th Jud. Dist. 2001]). The burden then shifted to defendant to show the existence of a triable issue of fact. See, Alvarez v. Prospect Hosp. 68 NY2d 320, 324 (1986).

DEFENDANT’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Defendant maintains that it issued timely denials to plaintiff’s claim and in its opposition papers asserts the defense of lack of medical necessity. It is well settled that for an insurer’s denial of claim form to be deemed timely, the insurer must prove that it generated the denial of claim within thirty (30) days of receipt of plaintiff’s proof of claim and that it also mailed the denial to the claimant within the same time period. (See A.B. Medical Services, PLLC v. GEICO Ins. Co., 2 Misc 3d 26, [App Term, 2nd & 11 Jud Dists. 2003]). [*2]

Defendant submits denial of claims form that indicate that the bill was being denied due to a lack of medical necessity. The denials for the bills are timely on their face. In support of its motion defendant submits copies of the denials and purported proof of mailing of its denials (S & M Supply, Inc. v. Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). Specifically, defendant proffers the affidavit of Ms. Joan Rolfe, a claims representative employed by the defendant, and the affidavit of Matt Olmstead, an employee of defendant who is employed as a Senior Operations Staff Analyst at Southwest Output Processing Center.

The two affidavits submitted by defendant do not establish mailing because neither Ms. Rolfe nor Mr. Olmstead state in their affidavits that they had personal knowledge that the denial of claim was actually sent to plaintiff (Presbyterian Hosp. v. Maryland Casualty Ins. Co., 226 AD2d 613 [2d Dept 1996]); nor does either affidavit create a presumption of mailing because neither sufficiently describes the standard operating procedures defendant uses to ensure that its denials and requests for verification are mailed (S & M Supply, Inc. v. GEICO Ins. Co., 3 Misc 3d 136A [2d & 11th Jud Dists 2004]). Although the affidavits provide information on the preparation and mailing of the denial of claims, they do not include sufficient factual information describing how defendant’s regular office practices and procedures for mailing denials are “geared as to ensure the likelihood that [the denial of claim] is always properly addressed and mailed.” Clark v. Columbian Mutual Life Ins. Co., 221 AD2d 227, 228 (1st Dept 1995), quoting Nassau Ins. Co. v. Murray, 46 NY2d 828, 830 (1978).

Specifically, defendant failed to state sufficiently, or describe with particularity the regular office practices and procedures defendant uses to ensure that denials are properly and timely mailed, including, but not limited to the following: (1) whether the NF-10’s generated by computer by the claims representative are compared with the NF-10’s that “[come] into the Southwest Output Processing Center’s job queue;” (2) the specific date that the denial was actually mailed to plaintiff; (3) whether the envelope contained the NF-10’s and that the envelope was correctly addressed; (4) whether any computer printout or record was generated and reviewed which listed the claimants who were allegedly mailed NF-10’s on the date or dates that defendant alleges it mailed the NF-10’s; and (5) whether it was the duty of the claims representative or Senior Operations Staff Analyst to ensure compliance with said office practices and procedures or whether the claims representative or Senior Operations Staff Analyst had actual knowledge that said practices and procedures were complied with. (See, Contemp. Med. Diag & Treatment, P.C. v. GEICO Ins. Co., 6 Misc 3d 137(A), 2005 NY Slip Op 50254 [U] [2d & 11th Jud Dists 2005]).

The court finds the assertions of Ms. Rolfe and Mr. Olmstead conclusory and such assertions fail to specify either that it was the duty of either one of them to ensure compliance with said office procedures or that either one had actual knowledge that said procedures were complied with. (See, Contemp. Med. Diag & Treatment, P.C. v. GEICO Ins. Co., 6 Misc 3d 137(A), 2005 NY Slip Op 50254[U] [2d & 11th Jud Dists [*3]2005]). As defendant’s papers in opposition to plaintiff’s motion for summary judgment do not contain an affidavit of someone with personal knowledge that its denial was actually mailed, or describe the standard office practices or procedures used to ensure that such denials were properly addressed and mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d [2d Dept 2001]), defendant failed to establish by competent evidence that it timely mailed its denials, and therefore, defendant is precluded from offering all of its defenses in the instant matter.

Accordingly, plaintiff’s motion for summary judgment is granted. Judgment shall be awarded in favor of plaintiff in the amount of $3,177.54, together with statutory interest and attorneys fees.

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3/15/06 HOWARD G. LANE

DateJudge of the Civil Court