Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 15, 2007. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

Order modified by providing that defendant’s motion for summary judgment is granted to the extent of dismissing the second cause of action and by further providing that plaintiff’s cross motion for summary judgment is denied with respect to the second cause of action; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing as premature both plaintiff’s first cause of action (regarding plaintiff’s assignor Jonnise Atwater) and second cause of action (regarding plaintiff’s assignor Cossandra Cogdell), and plaintiff cross-moved for summary judgment. The court below granted plaintiff’s cross motion and denied defendant’s motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavits of the billers employed by a third party, submitted in support of plaintiff’s cross motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op [*2]50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]).

Defendant also contends that its motion seeking summary judgment dismissing the complaint as premature should have been granted since verification requested of plaintiff was still outstanding. Specifically, defendant claimed that plaintiff failed to provide it with an application for motor vehicle no-fault benefits for both assignors, hospital records for Ms. Atwater, and an assignment of benefits form executed by Ms. Cogdell.

Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted on behalf of a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant acknowledged receipt of hospital facility forms for both Ms. Atwater and Ms. Cogdell. Accordingly, defendant was not entitled to summary judgment dismissing the complaint on the ground that plaintiff failed to provide it with applications for motor vehicle no-fault benefits.

Furthermore, with respect to Ms. Atwater’s hospital records, plaintiff’s submissions, consisting of a certified mail receipt and a signed return receipt postcard, each bearing the same number and a notation to the relevant medical records, created a presumption of their receipt (see e.g. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]). Since defendant failed to rebut said presumption (id.), it did not demonstrate that plaintiff failed to respond to this request for verification. Therefore, it cannot be said that defendant was entitled to summary judgment, with respect to plaintiff’s first cause of action, on the ground that plaintiff failed to provide it with Ms. Atwater’s hospital records. Nor did defendant raise a triable issue of fact sufficient to defeat plaintiff’s cross motion. Accordingly, the court below properly granted plaintiff’s cross motion for summary judgment with respect to plaintiff’s first cause of action.

However, with respect to the verification request seeking a completed assignment of benefits form executed by Ms. Cogdell, the record shows that defendant timely mailed the verification request and follow-up request seeking said assignment of benefits form, and that plaintiff did not respond to said requests. Contrary to plaintiff’s assertions, the affidavit of defendant’s no-fault litigation examiner was sufficient to demonstrate that said requests were properly mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and the follow-up request was in proper form (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]). While plaintiff argues that the follow-up request was defective in that it failed to identify “in writing the missing verification” (see Insurance Department Regulations (11 NYCRR) § 65-3.6 [b]), we find that this contention lacks merit because the initial and the follow-up request were both seeking verification from plaintiff and, if plaintiff was uncertain as to what information defendant’s follow-up request was seeking, plaintiff should have resolved the issue by communicating with defendant rather than ignoring [*3]the follow-up request (see Westchester County Med. Ctr. v New York Cent. Mut. Fire. Ins. Co., 262 AD2d 553 [1999]; Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 126[A], 2007 NY Slip Op 50500[U] [App Term, 9th & 10th Jud Dists 2007]).

Since an insurer is entitled to receive verification of all relevant information requested (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), defendant demonstrated that plaintiff’s second cause of action was premature. Therefore, defendant was entitled to summary judgment dismissing plaintiff’s second cause of action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 09, 2008