December 30, 2005
Mega Supply & Billing Inc. v Allstate Ins. Co. (2005 NY Slip Op 52168(U))
https://www.beynensonlaw.com/case-law/mega-supply-billing-inc-v-allstate-ins-co-2005-ny-slip-op-52168u/
- Judge
- Thomas, J.
- Decided
- December 30, 2005
- Citation
- 2005 NY Slip Op 52168(U) · 10 Misc 3d 1065(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Mega Supply & Billing Inc. v Allstate Ins. Co. (2005 NY Slip Op 52168(U))
| Mega Supply & Billing Inc. v Allstate Ins. Co. |
| 2005 NY Slip Op 52168(U) [10 Misc 3d 1065(A)] |
| Decided on December 30, 2005 |
| Civil Court, Kings County |
| Thomas, J. |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court, Kings County
Mega Supply & Billing Inc., a/a/o Alex Zubaty, Plaintiff,
against Allstate Insurance Co., Defendant. |
95623/04
Delores J. Thomas, J.
In this action brought by a health care provider to recover no-fault benefits as assignee of Alex Zubaty, plaintiff moves for an order granting summary judgment against defendant in the sum of $540.00 plus statutory interest together with statutory attorney’s fees.
The No-Fault Law provides for payments for medical supplies provided to a person injured as a result of an accident arising out of the use or operation of a motor vehicle. To recover first-party benefits, a claimant must demonstrate a prima facie entitlement to summary judgment by setting forth proof that it submitted a claim, the fact and amount of losses sustained and that payment of benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]).
It is undisputed that defendant did not pay or deny the claim within the required 30-[*2]day period. Plaintiff contends there was no extension of the time period through verification requests. Although defendant requested an examination under oath (EUO), unless defendant can establish that the policy in effect entitled defendant to conduct an EUO and that it made a timely and proper verification request, tolling does not occur. Policies issued on or after April 5, 2002 must contain the revised prescribed endorsement to entitle the insurer to conduct an EUO (see, SZ Medical P.C. v. State Farm Mutual Auto Ins. Co., 9 Misc 3d 139 [A], 2005 NY Slip Op 51842 [U] [App Term, 1st Dept 2005]). Here, defendant has not demonstrated any basis to toll the 30-day period.
An untimely denial precludes defendant from interposing most defenses including the defense of lack of medical necessity (Amaze Med. Supply Inc. v. Eagle Ins. Co., 2 Misc 3d 139 [A], 2004 NY Slip Op 050279 [U] [App Term, 2d & 11th Jud Dists 2004]). However, defendant is not precluded from asserting the defense that the injuries do not arise out of a covered accident or a defense premised on staged accident fraud (see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Metro Med. Diagnostics v. Eagle Ins. Co., 293 AD2d 751 [2nd Dept 2002]). However, to withstand a motion for summary judgment, defendant must raise a triable issue of fact (Alvarez v. Prospect Park Hospital, 68 NY2d 320 [1986]).
The denial of claim form (Exhibit A, annexed to Notice of Motion) states: “All no fault benefits denied based in part on A) the EUO; B) failure to establish proof of claim; C) failure to establish that the injuries arose out of the use and operation of the insured vehicle; and D) the treatment was not causally related to the claimed injuries.” In addition, in support of its fraud defense defendant submits the affidavit of Jeffrey Billington, claims adjuster in the no-fault department of defendant insurer. Billington does not state that he is a special insurance investigator or that he is trained in fraud detection. He asserts that plaintiff received aggressive medical treatment for a “relatively minor collision” as a basis for the EUO and to support a fraud claim. Billington concludes there is a “discernable pattern of circumstances and conduct consistent with staging of an accident.” He refers to the fact that the assignor sought treatment six days after the accident from a provider other than his personal doctor, that he was referred to get an MRI on an initial visit and that he was involved in a prior accident (four years ago) which was settled by the same attorney now representing plaintiff.
The insurer has the burden to come forward with proof in admissible form to establish the basis for its belief that there is no coverage (see, Mount Sinai Hospital v. Triboro Coach Inc., 263 AD2d 11 [2d Dept 1999]). An insurer’s “founded belief” that an accident was staged cannot be based upon unsubstantiated hypotheses and supposition (see, A.B. Medical Services v. Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d Dept 2003]). The statements made by defendant’s counsel in the affirmation in opposition, that the injuries did not arise from the accident and/or that the accident was staged, are not based on personal knowledge and are of no probative value. In addition, the Court finds the assertions made by the claims representative are insufficient to support his finding of a pattern of circumstances and conduct which constitutes fraud. Defendant’s belief that treatments were unduly “aggressive” or unnecessary might have been addressed through a defense of lack of medical necessity if there had been a timely denial. Defendant has not submitted any proof specific to the circumstances of the accident to support a “founded belief” that the accident was staged.
Accordingly, plaintiff’s motion for summary judgment is granted. The clerk is directed to enter judgment in favor of plaintiff in the sum of $540.00 together with statutory interest and attorney’s fees. [*3]
This constitutes the decision and order of the Court.
DATED: December 30, 2005
Brooklyn, New York
DELORES J. THOMAS
Judge Civil Court
Legal questions (2)
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 the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held the insurer's staged-accident defense unsupported because counsel lacked personal knowledge and the claims adjuster's assertions of aggressive treatment and suspicious circumstances were speculative and not specific to the accident.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (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)
Granted the provider summary judgment, the insurer undisputedly having neither paid nor denied within 30 days and having shown no tolling, since it did not establish that its policy authorized the EUO it requested.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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.
- 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.
- SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U)) FollowedThe insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment.
- Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50279(U)) FollowedA provider cannot invoke preclusion to defeat a defense concerning unprescribed equipment when its own motion papers raise that issue.
- A.B. Med. Servs. v Eagle Ins. Co. (2003 NY Slip Op 23978) FollowedThe insurer's investigator's affidavit failed to raise a triable issue that the collision was staged.
Similar decisions
- Bronx Expert Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51992(U))The insurer's investigator affidavit and EUO transcripts failed to establish a founded belief that the collision was staged.
- A.M Med. v New York Cent. Mut. Ins. Co. (2004 NY Slip Op 50298(U))The insurer's unsworn low-impact report failed to establish a coverage defense or raise a triable issue concerning injury causation.
- New York Massage Therapy P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 52573(U))The insurer failed at trial to support its staged-accident defense with admissible evidence establishing a founded belief of no coverage.
- Mega Supply & Billing, Inc. v American Tr. Ins. Co. (2005 NY Slip Op 51569(U))A denial stating only that a claim is denied based on an EUO is too vague to defeat a provider's summary judgment motion.
- Capri Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50538(U))The insurer's low-impact study and out-of-state affidavit were inadmissible and failed to support its lack-of-causation defense.