Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U))

CV-724222-19/QU

Plaintiff’s Counsel:
Gabriel & Shapiro, L.L.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Former Counsel:
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 420
Melville, New York, 11747

Defendant’s Current Counsel:
Callinan & Smith, LLP
3361 Park Avenue, Suite 104
Wantagh, NY 11793

Papers

The following papers were read on Defendant’s motion and Plaintiff’s cross-motion for summary judgment:

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

Affirmation dated as of January 10, 2020 (“Motion”) and entered by the court on

February 3, 2020.

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation2

in Support dated as of October 16, 2020 (“Cross-Motion”) and electronically filed

with the court on October 19, 2020.

Defendant’s Affirmation to Cross-Motion dated as of October 20, 2020 (“Reply”) and

electronically filed with the court on October 20, 2020.3

Background

In a summons and complaint filed on October 24, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,034.58 in unpaid first party No-Fault benefits for chiropractic services provided to Plaintiff’s assignor Martinez throughout 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a $92.48 bill for services provided May 8 to 9, 2018 (“First Bill“). The Third cause of action was for recovery of a $458.16 bill for services provided June 18 to July 11, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $285.94 bill for services provided April 2 to 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $226.96 bill for services provided July 17 to 27, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $138.72 bill for services provided September 6 to 14, 2018 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $231.20 bill for services provided August 10 to 27, 2018 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a $92.48 bill for services provided August 2 to 3, 2018 (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $369.92 bill for services provided April 17 to May 2, 2018 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $138.72 bill for services provided June 11 to 15, 2018 (“Ninth Bill“). The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, and Eighteenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant now moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“) and failed to timely submit a claim to Defendant, or alternatively for judgment that Defendant established its prima facie case. Plaintiff cross-moved for summary judgment on its claims against Defendant. After [*2]various adjournments, the motion papers were deemed to be fully submitted and subsequently assigned to this Court during the coronavirus pandemic. An oral argument by both parties was conducted by this Court on March 17, 2021.

Discussion and Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

In the instant matter, Plaintiff alleged that Defendant failed to timely pay or deny nine (9) separate bills for chiropractic services provided from April to September 2018. Defendant denied receiving Plaintiff’s Second Bill. With respect to the eight (8) remaining bills, Defendant maintained that it properly denied the claims based on those bills because Plaintiff failed to attend EUOs.

Plaintiff’s Second Bill/Plaintiff’s Third Cause of Action

Regarding Plaintiff’s Second Bill in the amount of $458.16 for chiropractic services rendered from June 18 to July 11, 2018 that Plaintiff prayed for in its third cause of action, Defendant denied receiving the bill. Defendant presented an affidavit sworn January 7, 2020, in which Overly, an employee of IDS Property Casualty Insurance Company, which works for Defendant, attested in detail to Defendant’s office practices and procedures for processing claims it received and that a records search revealed no bill for $458.16 for service performed from June [*3]18 to July 11, 2018. Here, such evidence sufficiently demonstrated that Defendant did not receive Plaintiff’s claim in the amount of $458.16 (Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] *1 [App Term 2d Dept 2013]; Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158[A], 2012 NY Slip Op 50431[U] *3 [App Term 2d Dept 2012]). In opposition, Plaintiff presented the affirmation of Moroff, a partner in Plaintiff’s law firm, who attested to the firm’s standard procedures for processing bills it received and submitting them to the insurer for payment (see Cross-Motion, Aff, of John E. Fagan Ex. B). An affidavit of mailing attached to Moroff’s affirmation indicated that the bill was mailed on July 24, 2018. Contrary to Defendant’s contention, Plaintiff properly used an affirmation from Moroff, instead of an affidavit because Moroff is not a party to this action (see Finger v Saal, 56 AD3d 606, 607 [2d Dept 2008]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466, 466 [2d Dept 2004]; Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] *1 [App Term 2d Dept 2012]). Here, Plaintiff has raised factual issues regarding its timely submission of the Second Bill (BAB Nuclear Radiology, P.C. v Mercury Cas. Co., 50 Misc 3d 147[A]; 2016 NY Slip Op 50318[U] *1 [App Term 2d Dept 2016]; Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] *1 [App. Term 2d Dept 2016]), and such issue must be resolved at trial.

Plaintiff’s Third Bill and Eighth Bill/Plaintiff’s Fifth and Fifteenth Causes of Action

Defendant acknowledged receiving Plaintiff’s Third Bill in the amount of $285.94, on May 12, 2018, and Plaintiff’s Eighth Bill in the amount of $369.92, on June 4, 2018, which respectively constituted Plaintiff’s fifth and fifteenth causes of action. Although Defendant sent two separate explanations of benefits dated May 24, 2018 and June 6, 2018, which advised Plaintiff that payment was being delayed pending an EUO, this Court finds that these explanations of benefit are insufficient to delay payment or denial because they did not request verification (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]). Therefore, regarding the Third Bill and Eighth Bill respectively received on May 12 and June 4, 2018, Defendant’s denial of Plaintiff’s claims based on these bills on July 27, 2018 was untimely (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92 [App Term 2d Dept 2012]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-47 [2d Dept 2009]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649 *2). As a result, Defendant is not entitled to a judgment dismissing Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill respectively.

Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill/

Regarding the remaining six (6) bills, i.e., Plaintiff first, fourth, fifth, six, seventh and ninth bills, which constituted Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, Defendant presented an affidavit sworn January 10, 2020, in which Callinan, a partner in Defendant’s counsel’s office, attested to the standard mailing procedures for requests for EUOs and that counsel’s office mailed a request to Sayyed and his attorney on June 5, 2018, scheduling an EUO for June 21, 2017 (see Motion, Aff. of Michael Soriano, Ex. E). Defendant also presented a letter from Plaintiff’s counsel dated June 18, 2018, which acknowledged receipt of the June 5, 2018 scheduling letter (see Motion, Soriano Aff. Ex. K). Here, such evidence established Defendant’s timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. The transcripts of the EUO proceedings (see Motion, Soriano Aff., Ex. I and J) further constituted adequate proof of Sayyed’s nonappearance (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). In addition, Defendant established the timeliness of the second EUO request letter dated June 26, 2018, which scheduled the EUO for July 13, 2018 (see Motion, Soriano Aff. Ex. F), after Sayyed failed to attend the first EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). Since Defendant received the remaining bills after the request for EUO was sent to Plaintiff, the EUO request letter dated June 5, 2018 tolled Defendant’s time to pay or deny the claims (Sharp View Diagnostic Imaging, P.C. v Esurance, 57 Misc 3d 146[A], 2017 NY Slip Op 51466[U] *1 [App Term 2d Dept 2017]; Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U] *2).

Overly’s affidavit established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claim within thirty (30) days after the second scheduled EUO (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on July 27, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Here, Defendant’s evidence that it twice requested EUOs from Sayyed, that he failed to appear both times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). As a result, Defendant has met its initial burden of demonstrating that Sayyed failed to attend duly scheduled EUOs and that Defendant timely denied the claims [*4]based on the First Bill, the Fourth Bill, the Fifth Bill, the Six Bill, the Seventh Bill and the Ninth Bill, which were embodied in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment. While Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs, here, such a response is not required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2).

Since Plaintiff failed to raise factual issues regarding Defendant’s defense, Defendant is entitled to dismissal of Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

With respect to Plaintiff’s fifth and fifteenth causes of action, as addressed above, Defendant failed to toll the time to pay or deny the claims based on Plaintiff’s Third Bill and Eighth Bill in the respective amount of $285.94 and $369.92. Therefore, Plaintiff is entitled to a summary judgment on its claims based on these bills in the total amount of $655.86, plus statutory interest (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046-47; Alur Med. Supply, Inc. v Progressive Ins. Co., 2008 NY Slip Op 52191[U] *1-2).

With respect to Plaintiff’s third cause of action, as noted above, factual issues remain regarding Defendant’s receipt of the Second Bill in the amount of $458.16. Such issue must be resolved at trial.

Finally, regarding the remaining six (6) bills alleged in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, given Defendant’s unrebutted evidence of its timely submission of EUO request letters, Sayyed’s failure to attend the two scheduled EUOs, and Defendant’s timely denial of Plaintiff’s claims on that basis, this Court dismisses these causes of action as set forth above. Plaintiff is not entitled to a payment for the First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill.

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted to the extent of dismissing Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action based on Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill and Ninth Bill, but is otherwise denied, and it is further

ORDERED that Plaintiff’s Cross-Motion is granted to the extent of judgment in Plaintiff’s favor on Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill in the total amount of $655.86 plus statutory interest, but is otherwise denied, and it is further

ORDERED that Plaintiff’s third cause of action to recover the Second Bill in the amount of $458.16 for services provided June 18 through July 11, 2018, shall proceed to trial; and that Plaintiff’s attorneys’ fees shall be decided during or upon the conclusion of the trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 13, 2021
Queens County Civil Court
_____________________________________
Honorable Li, J.C.C.