July 6, 2005

S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U))

https://www.beynensonlaw.com/case-law/s-m-supply-inc-v-state-wide-ins-co-2005-nyslipop-51046u/

Court: Appellate Term, Second Department
Decided: July 6, 2005
Citation: 2005 NY Slip Op 51046(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Assignments and standing Verification requests
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

S & M Supply Inc. v State-Wide Ins. Co., 2005 NY Slip Op 51046(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2005)

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.

A provider's billing manager need not have personal knowledge that prescribed equipment was delivered to establish a prima facie case. The provider submitted functional equivalents of claim forms under 11 NYCRR 65-3.5 (a) and (f), proof of overdue payment, and combined equipment receipt and assignment forms. The assignor's acknowledgment of receipt was unchallenged. Any perceived defect in the assignments required verification or assertion in a timely denial; the insurer's signature-authentication objection was unpreserved and lacked a statutory or regulatory basis. The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a).

Reported in New York Official Reports at S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U))

[*1]

S & M Supply Inc. v State-Wide Ins. Co.

2005 NYSlipOp 51046(U)

Decided on July 6, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-435 N C

S & M Supply Inc., a/a/o Irma Sanon, Appellant,
against
State-Wide Insurance Company, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 20, 2004, which denied its motion for summary judgment.

Order unanimously 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 this action to recover assigned first-party no-fault benefits for medical equipment provided its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted the functional equivalent of the statutory claim forms (see 11 NYCRR 65-3.5 [a], [f]) setting forth the fact and amount of the losses 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]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists]; see also Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). Further, the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application, whether for health services or medical equipment (e.g. Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra), and there is no requirement that a billing manager allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor (see King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d at 56) particularly where, as here, assignor signed a document acknowledging receipt of the prescribed equipment, the authenticity or accuracy of [*2]which was unchallenged below. If defendant questioned the document’s propriety, its remedy was to invoke the verification procedures.

Insofar as the determination below rests on the purported absence of proof of an assignment, it is erroneous as plaintiff submitted copies of combined equipment receipt/assignment of benefits forms, which submission defendant does not deny. In any event, if defendant perceived any defect on the face of the assignments or required further proof thereof, its remedy was to seek verification of same, or at least, to allege such defect as a basis of a timely denial (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]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70, 71 [App Term, 2d & 11th Jud Dists 2004]). With respect to the alleged lack of authentication of the assignor’s signature (raised for the first time on appeal), it is unpreserved and without merit. “The lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same” (A.B. Med. Servs. PLLC v Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]; see also Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d at 71).

Accordingly, plaintiff’s motion for summary judgment should have been 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.
Decision Date: July 06, 2005

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.

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

Held the supplier's proof that it submitted the functional equivalent of claim forms and that payment was overdue sufficient; the billing manager's affidavit was proper and needed no personal knowledge that the equipment was furnished.

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

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.

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.
King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343) FollowedThe insurer's mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion.
Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.
Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50279(U))A provider cannot invoke preclusion to defeat a defense concerning unprescribed equipment when its own motion papers raise that issue.
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.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
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.
A.B. Med. Servs. PLLC v Electric Ins. Co. (2005 NYSlipOp 50542(U)) FollowedThe assignor's selective IME attendance established receipt of all listed requests and raised a medical-necessity issue on the no-show denials.

Similar decisions

Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U))The insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost.
Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.
S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U))The insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
S & M Supply, Inc. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 50557(U))An EUO request does not toll the payment or denial period under the former regulation that did not require an injured person to submit to an EUO. The provider established submission of a complete proof of claim and nonpayment or denial within 30 days under Insurance Law § 5106 (a) and former 11 NYCRR 65.15.
Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))The insurer's IME nonappearance defense failed because it did not establish mailing of the scheduling requests to the assignor.