July 3, 2007
PDG Psychological, P.C. v Lumbermans Mut. Cas. Co. (2007 NY Slip Op 51343(U))
https://www.beynensonlaw.com/case-law/pdg-psychological-p-c-v-lumbermans-mut-cas-co-2007-ny-slip-op-51343u/
- Court
- Appellate Term, Second Department
- Decided
- July 3, 2007
- Citation
- 2007 NY Slip Op 51343(U) · 16 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
- Legal questions
- Proof of mailing (see the maps)
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 PDG Psychological, P.C. v Lumbermans Mut. Cas. Co. (2007 NY Slip Op 51343(U))
[*1]| PDG Psychological, P.C. v Lumbermans Mut. Cas. Co. |
| 2007 NY Slip Op 51343(U) [16 Misc 3d 131(A)] |
| Decided on July 3, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-774 Q C.
against
Lumbermans Mutual Casualty Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 16, 2006. The order denied plaintiff’s motion for summary judgment.
Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
In opposition to plaintiff’s motion for summary judgment, defendant failed to establish that the denial of claim form was timely mailed since the affidavit of defendant’s claims representative did not state that she actually mailed the denial of claim form or set forth proof of [*2]defendant’s office practices and procedures designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish that it mailed a timely denial of claim form to plaintiff (see 11 NYCRR 65-3.8 [c]), it is precluded from raising the proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of
attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Rios and Belen, JJ., concur.
Golia, J.P., dissents in a separate memorandum.
Golia, J.P., dissents and votes to affirm the order in the following memorandum:
In the first instance, I find that the plaintiff failed to establish its prima facie case. The supporting affidavit submitted by the plaintiff’s corporate officer fails to provide sufficient facts to lay a foundation for the admission of the documents at issue as business records (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]).
The mere fact that the defendant “failed” to raise the issue of a prima facie case is of no moment inasmuch as this court, as well as the trial court, is obligated to make a finding that there is a prima facie case before even considering granting a judgment.
Accordingly, the plaintiff’s motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).
Additionally, I find that the defendant’s opposing papers established a timely denial.
Plaintiff asserts that the claim form was mailed on December 2, 2002 and defendant’s NF-10 denial of claim form acknowledges receipt of such form, on December 4, 2002. This conformity of facts is certainly sufficient to show that the claim was mailed and that it was received on December 4, 2002.
Defendant thereafter asserts that it sent a request for verification on December 12, 2002 and received said verification on January 8, 2003. These documents were in the defendant’s file and the defendant’s claims representative submitted a sworn affidavit as to the truth of these statements.
Thereafter, on January 31, 2003, the NF-10 denial of claim form which was predicated on a peer review report was received by the plaintiff. [*3]
We know it was received by the plaintiff at that time, not only because, in her sworn affidavit, the defendant’s claims representative asserted that it was sent, but also because, as the plaintiff does not deny, it received partial payment of its claim, in the
amount of $194.57 from the defendant, which payment accompanied the NF-10 form which denied the remainder of the claim.
Inasmuch as these facts establish a timely denial predicated upon a peer review report, the plaintiff s motion was properly denied.
Decision Date: July 03, 2007
Legal questions
A question 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 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 denial because its claims representative neither stated she mailed it nor described office practices ensuring proper addressing and mailing, so it was precluded.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 256 (this one included) are in the same category.
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.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U))The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
Cited by
A label shows how the later decision treated this one.
- Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 27344) FollowedThe insurer failed to prove timely mailing because its denial forms lacked the handwritten dates described in its mailing affidavit.
- Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 50277(U)) FollowedThe insurer failed to justify vacatur because it proved neither a reasonable excuse for its default nor a meritorious defense.
- Infinity Health Prods., Ltd. v Progressive Ins. Co. (2008 NY Slip Op 50345(U)) FollowedThe insurer failed to establish timely mailing of its follow-up verification request because the date stamp contradicted its affidavit.
Similar decisions
- PDG Psychological P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 51432(U))The provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof.
- 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.
- A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50743(U))The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests.