Style Acupuncture, P.C. v State-Wide Ins. Co. (2010 NY Slip Op 50089(U))

Civil Court of the City of New York, Kings County

034843/08

Sylvain Jakobavics, Esq.

Attorney for Plaintiff

2630 Ocean Avenue

Suite A-3

Brooklyn, NY 11229

718.332.0577

James Hiebler & Assoc.

Attorney for Defendant

20 Main Street

Hempstead, NY 11550

516.564.8000

Johnny L. Baynes, J.

Plaintiff in this application for first party no-fault benefits pursuant to Insurance Law § 5106[a], See also, Mary Immaculate Hospital. v. Allstate Ins. Co., 5 AD3d 742 [2004], moves for summary judgment in the amount of $729.71 for medical services rendered.

A party moving for summary judgment must show, by evidence in admissible form, that there are no material issues of fact in controversy and that they are entitled to judgment as a [*2]matter of law. Once that showing is made, the burden shifts to the opponent of the motion for summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy which require a trial. Alvarez v. Prospect Hospital, 68 NY2d320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851(1985).

In the instant matter, plaintiff has shown, by admissible evidence, that it was assigned the instant claim and submitted same to defendant and that said claim was not paid within thirty days of its receipt by defendant. The Affidavit of Alla Noginsky, the owner of plaintiff facility, is detailed, clear and sets forth with specificity the basis for her knowledge of the procedures with respect to the instant claim, the manner of gathering and recording the billing information and the specifics as to the mailing of the bill and NF-3 claim form to the defendant.

Moreover, the Affidavit of Donna King, defendant’s employee, a no fault examiner, acknowledges that the NF-10 submitted with the defendant’s motion papers is correct. That NF-10 denial of claim form states clearly that the denial was not issued with respect to the bills, received “11/26/06-2/16/07”, until April 10, 2007, in clear violation of the requirement of Insurance Law § 5106[a] that the denial be issued within thirty (30) days of their receipt by defendant.

The NF-10 describes the basis for the denial as follows:

AS PER CARRIER’S INVESTIGATION A PORTION OF

YOUR BILL WILL NOT BE HONORED ACCORDING TO

THE CLAIMANT’S RECORDED STATEMENT THE

ACUPUNCTURE SESSIONS LASTED15 MINUTES.

CARRIER WAS BILLED AN ADDITIONAL 15 MINUTES

WITH NEEDLE REINSURCION [sic] WHICH WAS NOT

RENDERED. AS PER DENIAL OF 12/11/06 NO FURTHER

TREATMENT WILL BE HONORED. CONSULTANT

REPORT PREVIOUSLY SENT.

Defendant’s excuse for the delay in denying the claim is that there was a “pending fraud investigation”. There is no indication that any verification request was ever sent to plaintiff after defendant received the bills. Such a request would have served to toll the time to deny the claim. Moreover, the report of Special Investigations Unit [hereinafter “SIU”] Investigator, Charles Rorke, is unsworn and not in admissible form as required by CPLR § 3212. However, even if it were admissible, Mr. Rorke concluded that “there is no evidence that [the accident forming the basis of the claim] was caused or staged”.

Defendant correctly states that “a no fault insurer is not precluded from asserting a defense of fraud, despite the insurer’s untimely denial of the claim”. Central Gen. Hosp v. Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Progressive Northwestern Ins Co. V Van Dina, 282 Ad2d 269 [2d Dept 2001]. However, no such tolling provision applies with respect to provider fraud, which seemingly forms the basis for defendant’s denial. Fair Price Medical Supply Corp v. Travelers Indemnity Co., 10 NY3d 556, 860 NYS2d 471 [2008]. [*3]

Defendant urges that the Court find there is an issue of fact as to fraud and set the matter down for trial on that issue. The Court declines to do so. Even if there were admissible evidence of provider fraud, as set forth above, such evidence would not excuse defendant’s untimely denial of the within claims.

The Court finds that plaintiff has met its prima facie burden of proving mailing. Defendant is, however, unable to prove timely denial.

Wherefore, the Clerk of Court is directed to enter judgment in favor of plaintiff in the sum of $729.71, together with statutory costs, interest and attorneys fees.

The foregoing Constitutes the Decision and Order of the Court.

Dated: January 22, 2010

____________________________________

JOHNNY L. BAYNES, JCC