Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co. (2005 NY Slip Op 51058(U))

Civil Court of the City of New York, Queens County

120335/03

Gerald J. Dunbar, J.

This matter came before the Court on May 20, 2005, by way of Plaintiff’s Motion for Summary Judgment, pursuant to CPLR § 3212, for recovery of unpaid No-fault benefits in the sum of $4,619.33, along with statutory interest at the rate of two (2%) percent, compounded, per month, pursuant to 11 NYCRR 65.15 (g), and statutory attorneys’ fees on behalf of Plaintiff Assignee. The Plaintiff’s assignor was injured in an automobile accident in the City of New York. There is no claim that anything other than the No-Fault Regulations apply to the instant matter.

By way of comment, the Court notes that Counsel for Defendant appears to request, in his Affirmation in Opposition to the above-requested relief, a deposition of Plaintiff. As there is no cross-motion before it, the Court cannot properly address this request. [*2]

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 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. Mailing of each claim is proven by Defendant’s NF-10, Denial of Claim forms, which admit receipt of Plaintiff’s claims as follows: Claim Number 1, in the sum of $2,664.33, received by Defendant on November 7, 2001(“Claim No.1”); Claim Number 2, in the sum of $1,020.00, received by Defendant on November 26, 2001 (“Claim #

2″); Claim Number 3, in the sum of $680.00, received by Defendant on December 20, 2001 (“Claim #

3″); Claim Number 4, in the sum of $255.00, received by Defendant on January 10, 2002 (“Claim #

4″).

The admission of receipt in the Defendant’s NF-10 Denials are adequate admission of mailing and prove that aspect of Plaintiff’s prima facie case. A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A), 787 NYS2d 675 [App Term 2nd & 11th Jud Dist 2004]; A.B. Medical Services, PLLC v State Farm Mut. Automobile Ins. Co., NYLJ 2/20/04, p. 26, col. 6. Defendant proves mailing of it’s NF-10 denials by way of the Affidavit of its employee, Justin Barth, a no fault examiner and manager. However, each of the above-referenced claims were denied on April 10, 2002, and are untimely on their face.

As the NF-10 Denials are facially untimely and well outside of the thirty (30) day period established for denial of said claims in accordance with 11 NYCRR 65-3. The burden is, thereafter, on Defendant to show that the thirty (30) day period was tolled by proper verification requests and/or that a Chubb defense exists which falls outside of the thirty (30) day requirement. Defendant has submitted no proof of mailing of the verification requests sent herein, though Defendant submits proof in admissible form, of the mailing of the NF-10 by way of Mr. Barth’s Affidavit, as stated above, Thus, the purported proof of the Verification Requests and follow-up letters “amounted to unsubstantiated hearsay”. Ocean Diagnostic Imaging, P.C. v Lumberman’s Mutual Casualty, 2005 WL 1208401 [App Term 2nd and 11th Jud Dist]

Therefore, Defendant only avoids being precluded from denial of the claim in the event of an allegation of fraud. Therefore, Defendant has waived the defense that inappropriate codes and charges have been assigned to the treatment based upon the untimeliness of the denials as such objections do not “implicate coverage matters” and Defendant is precluded from raising them belatedly. Central General Hospital v Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 [1997].

The remaining questions for the Court are whether the low impact study propounded by Defendant gives rise to a “founded belief that the alleged injury did not arise out [*3]of an insured incident”. PDG Psychological, PC v State Farm Mutual Insurance Co., 6 Misc 3d 1022(A) [2005], and whether said study has been submitted in admissible, evidentiary, form. If the study is submitted in admissible form and has a proper factual basis, it is the bedrock upon which a founded belief shall lie. Ocean Diagnostic Imaging, PC v New York Central Mut. Fire Ins. Co., 7 Misc 3d 132(A) [App Term 2nd and 11th Jud. Dist. 2005]. The basis for the denials, as set forth in the NF-10’s is a “low-impact study” purportedly prepared with respect to the incident complained of, the results of which are alleged to have shown that the assignor’s injuries did not result from the accident in question.

In this particular matter, the Affidavit of Albert Cipriani, and employee of FTI/SEA submits an Affidavit detailing the conclusions purportedly drawn in the low impact study, but fails to submit the study to the Court. Mr. Cipriani’s Affidavit was executed in Maryland, before a Maryland Notary, and said is not in admissible form as the Affidavit fails to comply with CPLR § 2309 ( c ), which requires a certificate of conformity to accompany the out-of-state Affidavit. Citibank (South Dakota) N.A. v. Mosquera, 5 Misc 3d 134 (A) [App Term 2nd and 11th Jud Dist 2004]; Ford Motor Credit Co. v Prestige Gown Cleaning Services, Inc., 193 Misc2d 262, 748 NYS2d 235 [Civ Ct Queens 2002]. Thus, the Affidavit is insufficient to defeat Summary Judgment.

Moreover, the Court in Ocean Diagnostic Imaging, was very specific in finding that the “‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’, together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[] not arise out of an insured incident’.” 7 Misc 3d 132 (A) (emphasis added) (cites omitted).

Even if Mr. Cipriani’s Affidavit were in admissible form and properly sworn, it still would be insufficient to adequately raise an issue of fact as to Defendant’s purported founded belief. Mr. Cipriani fails to assert that he was the person who prepared the report and fails to annex the report to Defendant’s papers submitted herein. Thus, Defendant’s opposition papers are “insufficient to warrant denial of [the] plaintiff’s motion for summary judgment”. A.B. Med. Srvcs., PLLC v Electric Ins. Co., NYLJ 4/20/05, p. 25, col. 5.

Accordingly, the Court finds that Plaintiff has made out its case for breach of contract and for recovery of unpaid no-fault benefits. Plaintiff’s Motion for Summary Judgment is granted in all respects, and Judgment granted as follows: on Claim #

1, in the sum of $2,664.33, with statutory interest from December 8, 2001; on Claim #

2, in the sum of $1,020.00, with statutory interest from December 27, 2001; on Claim #

3, in the sum of $680.00, with statutory interest from January 20, 2002; on Claim #

4, in the sum of $255.00, with statutory interest from February 10, 2002. Interest to be calculated by the Clerk of Court at the statutory rate of two (2%) percent per month, compounded, from the respective dates set forth above, Plaintiff also to have judgment for statutory attorneys fees as per the NYCRR at twenty (20%) percent of the total medical bill plus interest thereon, plus costs and disbursements.

The foregoing constitutes the decision and order of the Court. [*4]

Dated: July 8, 2005

____________________________________

GERALD J. DUNBAR, JCC