Boai Zhong Yi Acupuncture Servs. PC v General Assur. Ins Co. (2005 NY Slip Op 50329(U))

Civil Court of the City of New York, Kings County

055906/04

Loren Baily-Schiffman, J.

Plaintiff moves for summary judgment on claims for first party No-Fault benefits.^[FN1] Plaintiff, a provider of health services and the assignee of its patient’s claims for payment, seeks $1,559.33 plus statutory interest and attorneys fees for three claims for acupuncture services. For the reasons stated below, Plaintiff’s motion is granted.

In order to establish a prima facie case on behalf of a provider, plaintiff must submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Pursuant to Insurance Law §5101 et seq. and the regulations promulgated [*2]thereunder, an insurer must either pay or deny a claim for No-Fault benefits within thirty (30) days of the date that the proof of claim is received. Insurance Law §5106; 11 NYCRR 65.15 (g)(3). The thirty (30) day period may be extended by an insurer’s request for verification of the claim within ten (10) business days for claims submitted prior to April 5, 2002 and fifteen (15) business days for subsequent claims. 11 NYCRR 65.15 (d) & (e). An insurer who fails to deny or pay a claim within the thirty (30) day period is precluded from raising any defenses to the claim, other than lack of coverage or fraud. Presbyterian Hospital v. Maryland Casualty Co., 90 NY2d 274 (1997); Presbyterian Hospital v. Aetna Casualty & Surety Co., 233 AD2d 433 (2d Dept., 1996); Central Hospital v. Chubb, 90 NY2d 195 (1997); Mt. Sinai v. Triboro Coach, 263 AD2d 11 (2d Dept., 1999). An insurer’s failure to raise objections within the ten (10) or (15) day verification period constitutes a waiver of defenses based thereon. Id.

A party moving for summary judgment must show by admissible proof that there are no material issues of fact in controversy and that they are entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York Univ. Medical Center, 64 NY2d 851 (1985). Once that showing is made, the burden shifts to the opponent of summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy that require a trial. Id.

Plaintiff asserts that it is entitled to summary judgment because defendant failed to pay any of the subject claims within thirty (30) days of receipt and denied the claims on an impermissible basis: failure of the assignor to appear for IME’s. Defendant opposes the motion on the following bases: 1) that plaintiff’s motion papers fail to prove the medical necessity of the services provided; 2) that the assignment of benefits is not authenticated; 3) the bills attached to the motion are not in admissible form and, as such, may not be considered in support of plaintiff’s motion; and 4) the claims were timely denied.

DISCUSSION

The case law in this Judicial District is clear that plaintiff need not prove medical necessity, authenticate the assignment of benefits or present its bills in admissible form in order to make out its prima facie case for summary judgment. Plaintiff need only submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Accordingly, the only issues which need be decided by the Court are the timeliness of defendant’s denials of the three claims that are the subject of this action and, if the Court finds any of the denials to be timely, whether failure to appear for IME’s is a proper basis on which to deny a claim.

Defendant responded to plaintiff’s claims dated June 26, 2002, July 23, 2002 and August 19, 2002 with one denial dated September 9, 2002. In that denial, defendant indicates that the June 26, 2002 claim was received on July 29, 2002; the July 23, 2002 claim was received on [*3]August 21, 2002; and the August 19, 2002 claim was received on August 26, 2002. Each of plaintiff’s claims is accompanied by a postal log stamped by the Postal Service indicating that the claim was mailed on the day it is dated. The explanation for why each claim was received by defendant weeks after it was mailed comes from the Affirmation of Gary Coore, a Litigation Supervisor employed by defendant. Mr. Coore states that defendant received the June 26, 2002 claim on July 1, 2002 and on July 18, 2002 sent plaintiff a letter indicating that defendant was delaying investigation of the claim pending receipt of certain identified information. Defendant states that this letter is a request for verification that was timely requested within the fifteen (15) business days permitted by NYCRR §65-3.5. According to Mr. Coore, the requested information was received on July 29, 2002. Independent medical examinations (IMEs) were then scheduled for the assignor, Mason Cory. Mr. Cory allegedly failed to appear for six (6) IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. A denial was issued on September 9, 2002 on the basis that the assignor failed to appear for IMEs. Defendant asserts that this denial was timely.

The Affidavit of Gary Coore states that the defendant received plaintiff’s July 23, 2002 claim on July 26, 2002 and on July 31, 2002 sent a delay letter to plaintiff requesting certain specified information. Mr. Coore also states that this claim was denied on September 9, 2002 for the assignor’s failure to appear at the IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. Mr. Coore states that plaintiff’s August 19, 2002 claim was received on August 21, 2002 and denied on September 9, 2002 for failure to appear at the aforementioned IMEs.

Timeliness of June 26, 2002 Claim

This claim was received by defendant on July 1, 2002 accordingly to the admission of Mr. Coore contained in his Affidavit in opposition to the instant motion. Mr. Coore states that a request for verification was sent on July 18, 2002, but no proof of mailing of this document is provided to permit the Court to determine whether the request was timely sent. Mr. Coore goes on to admit that responses to the request for verification were received on July 29, 2002. The claim was denied on September 9, 2002 on several bases: 1) that all No-Fault benefits for injured person were denied effective May 19, 2002; and 2) that the injured person failed to appear for IME’s on August 1, 2002 and August 15, 2002.

Pursuant to 11 NYCRR §65.15(c)(3), after receipt of requested verification information, an insurer has thirty (30) days within which to pay or deny the subject claim. Here, defendant has admitted that it received the requested verification information on July 29, 2002, yet the claim was not denied until September 9, 2002. The actions of the insurer in scheduling IME’s after receipt of the requested information did not extend its time to pay or deny the claim Choicenet Chiropractic, PC v. Elco Administrative Services Co., 2002 NY Slip Op. 40382 (Civil Court, Queens Co.), nor is the failure to appear for IME’s a permissible basis upon which to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co. 2001 NY [*4]Slip Op. 40655, (App. Term, 2d & 11th Jud. Dists, 2001); Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., 2001 NY Slip Op. 40654 (App. Term, 2d & 11th Jud. Dists., 2001). Accordingly, the July 26, 2002 claim was not timely denied.

Timeliness of July 23, 2002 Claim

The July 23, 2002 claim was received by the insurer on July 31, 2002 and denied on September 9, 2002. Annexed to Mr. Coore’s Affidavit is a document he refers to as a “pend letter” which by its terms requests that certain information be provided. However, there is no indication in the papers in opposition to the instant motion that this document was mailed to plaintiff, on what date or by what means it was mailed or if any response to the letter was received. Mr. Coore only states that IME’s were scheduled, the assignor failed to appear for the IME’s and a “timely denial” was issued on September 9, 2002.

As indicated above, the assignor’s failure to appear for IME’s is not a proper basis to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra. Moreover, as defendant has failed to prove that a request for verification was mailed to plaintiff, if the “pend letter” can be considered a request for verification, the thirty (30) day time period within which to deny a claim was never extended. The claim was received on July 31, 2002 and was not paid or denied within thirty (30) days thereafter. Accordingly, the denial of this claim is untimely.

Timeliness of August 19, 2002 Claim

This claim was received by the insurer on August 21, 2002. Defendant does not allege in its opposition papers that a request for verification of this claim was sent to plaintiff. Mr. Coore’s Affidavit states that IME’s were scheduled to be held prior to the receipt of this claim. The assignor failed to appear at these IME’s and

the insurer denied the claim on September 9, 2002 on the basis of the failure to appear at these previously scheduled IME’s. The insurer’s actions in response to this claim are analogous to situations where an insurer relies on a previous denial to deny a current claim. The Appellate Division, 1st Department, stated the following in A&S Medical, PC v. Allstate Ins. Co., 2005 NY Slip Op. 00505 (1 Dept., 2005)

When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.

Quoting Atlantis Medical, PC v. Liberty Mutual Ins. Co., 2002 NY Slip Op. 40043 (Dist Ct, Nassau Co,3d Dist, Great Neck Part). The statute and the regulations, similarly, do not permit the insurer after receipt of a claim to

simply sit mute” and deny the claim based upon an earlier failure to appear at IME’s. While this [*5]denial is timely, the basis for the denial is unavailable to defendant. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra.

For all the foregoing reasons, summary judgment is granted to plaintiff in the sum of $1559.33 plus statutory interest and attorneys to be computed by the Clerk of the Court.

This constitutes the Decision and Order of the Court.

Dated:February 9, 2005

__________________________

HON. LOREN BAILY-SCHIFFMAN

Footnotes

Footnote 1:Plaintiff has presented motion papers that are generic in nature and are more like a brief on No-Fault law than support for specific relief related to the claims and denials annexed as exhibits to the motion papers. The Court looks with disfavor on this practice which requires the Court to leaf through the exhibits to divine the factual basis for the relief sought in the motion.