February 3, 2006

Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

https://www.beynensonlaw.com/case-law/modern-psychiatric-servs-p-c-v-progressive-ins-co-2006-ny-slip-op-50143u/

Court: Appellate Term, Second Department
Decided: February 3, 2006
Citation: 2006 NY Slip Op 50143(U) · 10 Misc 3d 145(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Verification requests Timeliness and preclusion Assignments and standing
Legal questions: Proof of mailing · Claimant's prima facie case on motions · Challenging the assignment of benefits (see the maps)

Cite as

Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145(A), 2006 NY Slip Op 50143(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2006)

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.

The insurer failed to prove timely mailing of verification requests and therefore failed to establish a toll of the claim determination period. The provider established submission of its statutory claim form and overdue payment under Insurance Law § 5106. The insurer supplied neither an affidavit based on personal knowledge of mailing nor an adequate description of standard mailing procedures. Without proof of tolling the 30-day period under former 11 NYCRR 65.15 (d), now 11 NYCRR 65-3.8, the insurer was precluded from asserting its defenses, including deficiencies in the assignment. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion for summary judgment and dismissal.

Reported in New York Official Reports at Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))

[*1]

Modern Psychiatric Servs. P.C. v Progressive Ins. Co.

2006 NY Slip Op 50143(U) [10 Misc 3d 145(A)]

Decided on February 3, 2006

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-465 N C.

Modern Psychiatric Services P.C., a/a/o Bajram Lukovic, Respondent,
against
Progressive Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered January 26, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment and to dismiss the complaint.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services it provided to the injured assignor. Plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the verification requests were timely mailed. Defendant neither submitted an affidavit from one with personal knowledge alleging that the verification requests were mailed to plaintiff (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]), nor did defendant create a presumption of mailing by submission of an affidavit adequately describing the standard operating procedures it uses to ensure that its verification requests were mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Absent proof of a tolling of the 30-day claim determination period (11 NYCRR 65.15 [*2][d], now 11 NYCRR 65-3.8), defendant is now precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including any deficiency in the assignment (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna
Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Consequently, the motion court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 03, 2006

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.

Proof of mailing

Open 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

Held the insurer failed to prove timely mailing of its verification requests, offering neither an affidavit of personal knowledge of mailing nor an adequate description of standard mailing procedures.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

Claimant's prima facie case on motions

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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)

Held the provider established prima facie entitlement by proof that it submitted the statutory claim form stating the fact and amount of loss and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Challenging the assignment of benefits

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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 (rules on the question, but another ground decided the case)

Held the insurer, having failed to prove timely mailing of its verification requests, was precluded from raising any deficiency in the assignment.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

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.
Ocean Diagnostic Imaging P.C. v General Assur. Co. (2005 NY Slip Op 50435(U))The insurer failed to prove mailing of IME notices, and vendor affidavits first submitted with its appellate brief were outside the record.
New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506)The providers' billing manager affidavit failed to establish submission of properly completed claim forms.

Cited by

Lenox Hill Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 20530)The insurer's claims examiner established mailing of verification requests through firsthand knowledge of standard office practices.
Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))The insurer failed to establish timely denials based on IME nonappearance because it did not prove mailing of verification requests.
Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 52034(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.

Similar decisions

A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51036(U))The insurer failed to establish tolling because it did not prove mailing of its follow-up verification request.
Metroscan Med. Diagnostics, P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50500(U))The provider's action was premature because its incomplete assignment left the insurer's verification requests unsatisfied.
Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))The provider's action was premature because timely mailed verification requests remained unanswered when the action began.
PDG Psychological P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50246(U))A provider may rely on denial forms annexed to an insurer's motion to establish the insurer's receipt of the claims.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.