S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on February 19, 2004, as denied its cross motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, order entered December 7, 2004 dismissing the action vacated, plaintiff’s cross motion for summary judgment granted in the sum of $1,432.43, 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 first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff established a prima facie entitlement to summary judgment in in the sum of $739.80, as assignee of Clara Suckragh, and the sum of $692.63 as assignee of Peter Suckragh, for a total of $1,432.43, by proof that it submitted the claims, setting forth the fact and the 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In opposition, defendant argued that it properly denied the claims on the grounds, inter alia, that the documentation submitted by plaintiff was not an accurate representation of the actual cost of the equipment and that certain of the claims were in excess of the “average” wholesale cost of the billed medical supplies.

The record indicates that defendant denied the claims beyond the 30-day period within which it was required to pay or deny the same (see 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). While a timely verification request may extend the 30-day period, the affidavit of defendant’s litigation examiner was insufficient to demonstrate proper mailing of the verification [*2]request as to assignor Clara Suckragh since there is no allegation by one with personal knowledge that the letters were actually mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing
procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Accordingly, as to assignor Clara Suckragh, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including the defense, in effect, of excessive charges (cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; 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]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]).

While defendant’s submissions were adequate to establish a tolling of the 30-day period with regard to assignor Peter Suckragh by proof of its receipt of the verification requested, defendant has failed to submit proof in admissible form in support of its defense that the documentation submitted by plaintiff was “not an accurate representation of [plaintiff’s] actual cost” of the equipment. Moreover, defendant’s partial denials of certain of the claims on the ground that these were in excess of the “average” wholesale cost of the billed medical supplies, fail to state a valid basis for denial under the insurance regulations then in effect (see e.g. Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; King’s Med.
Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]). The insurance regulations governing medical equipment and supplies applicable to the instant action limits the amount recoverable by a provider of medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]). The defendant’s denial of benefits on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location has been rejected for claims under the regulations in effect prior to October 6, 2004 (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44, supra; King’s Med. Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U], supra).

We note that pursuant to the revised Insurance Department regulations regarding durable medical equipment and supplies, effective October 6, 2004 (see Circular Letter No. 8 [2004]; 11 NYCRR Appendix 17-C, part F, eff. October 6, 2004), the fee schedule for medical equipment sets forth, in addition to the 150% limit, the “usual and customary price charged to the general public” (11 NYCRR Appendix 17-C,
part F [a] [2]), whichever is less.

Accordingly, plaintiff’s cross motion for summary judgment is granted in the sum of [*3]$1,432.43, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: August 17, 2005