AR Med. Rehabilitation, P.C. v State-Wide Ins. Co. (2015 NY Slip Op 50631(U))

70806/2005

Gary Tsirelman, PC
Attorney for Plaintiff
129 Livingston Street
Brooklyn, NY 11201
by Stefan Belinfanti, Esq.

Law Office of Deirdre J. Tobin & Assoc.
Attorney for Defendant
P.O. Box 9330
Garden City, NY 11530
by Janine Gentile, Esq.

Plaintiff brought this action to recover assigned first-party no-fault benefits in the amount of $3,960.57. Trial commenced on February 13, 2015, and was continued over several days. The issues presented were whether plaintiff may establish submission and receipt of its claim through the use of defendant’s witness and whether defendant insurer asserted a valid defense in denying payment.

At trial, instead of the customary method of establishing a prima facie case by calling a witness of the provider, plaintiff called defendant’s claims examiner, Ms. Dachs. Ms. Dachs testified that defendant received plaintiff’s bills for dates of service 11/17/03-1/19/04.

The denial, dated 7/26/04, indicated bills in the amount of $3,962.57, for dates of service 11/17/03-1/19/04, were received between 1/23/03 [sic] and 3/1/04. It also stated, “By the claimants [sic] own admission he allegedly was treated by a chiropractor and acupuncturist. [*2]However carrier received bills from an orthopedic [sic] and a physical therapist as well. Claimant stated that the receptionist at the chiropractors [sic] office gave him supplies, not an outside vendor as carrier was billed from. Carrier questions validity of claim/treatment.” Neither party presented the actual bills and defendant relied on these latter statements as the basis for the denial. Both parties rested and moved for a directed verdict. The court reserved decision and heard closing arguments.

In no-fault insurance cases, plaintiff’s prima facie burden requires establishing proof of submission to the defendant of the claim and that defendant failed to pay or deny the claim within thirty days or issued a denial that was vague, conclusory or without merit as a matter of law (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2d Dept 2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2d Dept 2010]).

The Appellate Term reached a similar result in Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. (13 Misc 3d 127[A], 2006 NY Slip Op 51672[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). There, the court, albeit in the context of a motion for summary judgment, found that although a “provider [ordinarily] establishes the submission’ of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee,” where plaintiff’s proof was insufficient to establish mailing, the “deficiency was cured by defendant’s acknowledgment of receipt in its denial of claim forms [citations omitted] and by the admissions of the claims’ receipt in the affidavits by defendant’s claims adjusters” (id. at *2). As such, the court found plaintiff met its prima facie burden and the burden shifted to defendant to demonstrate triable issues of fact (id. [citations omitted]).

Thus, after the provider establishes submission of the bills, defendant’s burden is to prove that it paid or denied the claims within 30 days as required by statute (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). Defendant may extend its time to pay or deny the claims by issuing timely requests for verification (11 NYCRR 65-3.5 [b]). However, it is well-established that delay letters that do not timely request verification will not serve to toll the time to pay or deny a claim (see 11 NYCRR 65-3.5 [a] [1]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005] [citations omitted]).

Here, rather than the customary method of establishing submission and receipt of the claim through introduction of a witness of the assignee or its billing company, as was articulated in Viviane Etienne (114 AD3d at 45), plaintiff proved such through the testimony of defendant’s witness and the introduction of the denial into evidence, which referenced the bills at issue. The court finds plaintiff was not constrained to prove its case through the conventional method of producing its own witness, but was permitted to prove such through admissible evidence using the documents and witnesses of the defendant insurer (Prestige Med. & Surgical Supply, Inc., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U], at * 2; Optimal Well-Being Chiropractic, P.C., [*3]46 Misc 3d 129[A], 2014 NY Slip Op 51807[U], at *1-*2; East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2007] [holding NF-10 claim denial forms and affidavits of defendant’s claims examiner cured deficiencies in plaintiff’s proof of mailing]).

Furthermore, it is well-settled that “a medical provider is not required, as part of its prima facie case, to demonstrate the admissibility of its billing records or the truth of their content under the business records exception to the hearsay rule” (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648 [2d Dept 2014], citing see CPLR 4518 [a]; Viviane Etienne Med. Care P.C., 114 AD3d at 45). Where the insurer fails to timely contest the adequacy of the claims forms at the claims stage, as here, it is precluded from relying on any deficiencies in those forms or raising evidentiary challenges to the admissibility of the contents of the billing forms under the business records exception at the litigation stage (New York Hosp. Med. Ctr. of Queens, 114 AD3d at 649 [citations omitted]).

Therefore, defendant’s attack on the validity of the bills at trial here will not suffice to defeat plaintiff’s proof of a prima facie case. The testimony of Ms. Dachs and the denials were accepted into evidence and treated as admissions of receipt of the bills and the amount billed and not as a testament to the truth of their content (see Viviane Etienne Med. Care, P.C., 114 AD3d at 45). This result is consistent with the regulatory scheme for the prompt payment and processing of no-fault claims (see id.). Thus, plaintiff sufficiently met its prima facie burden by eliciting the credible testimony of defendant’s witness and admission of defendant’s denials. By establishing submission and receipt of the bills, the plaintiff shifted the burden to defendant to establish a valid defense for its failure to timely issue payment (see Viviane Etienne Med. Care, P.C., 114 AD3d at 45, 47; see Westchester Med. Ctr., 78 AD3d at 1169).

Defendant failed to meet its burden of establishing a justiciable defense because it failed to pay or deny the claims within 30 days as required by statute (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Defendant also failed to extend its time to pay or deny the claims by issuing timely requests for verification (11 NYCRR 65-3.5 [b]). As defendant is sufficiently aware, delay letters, as here, that do not timely request verification will not suffice to toll the time to pay or deny a claim (see 11 NYCRR 65-3.5 [a] [1]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005]). After the fact, only a non-precluded defense will suffice to prevent payment (see 11 NYCRR 65-3.8). Further, although defendant denied these claims based on alleged fraud, no fraud was demonstrated at trial and defendant failed to produce a competent witness or other evidence from which same could be adduced.

Accordingly, based on the credible testimony of Ms. Dachs and examination of the denial and other exhibits admitted into the record, the court finds plaintiff met its prima facie burden of establishing proof of submission of the bills to defendant, receipt of the bills, and that payment is overdue (see Viviane Etienne Med. Care, P.C., 114 AD3d 33; see Westchester Med. Ctr., 78 AD3d 1168; see Ave T MPC Corp., 32 Misc 3d 128[A]). Defendant failed to establish an adequate defense to payment (see 11 NYCRR 65-3.8; see Viviane Etienne Med. Care, P.C., 114 AD3d at 45-47; see Nyack Hosp. v Encompass Ins. Co., 23 AD3d at 536). Therefore, plaintiff is entitled to a judgment.

The Clerk of the Court shall enter judgment for the plaintiff in the amount of $3,960.57 plus statutory costs, interest, and attorney’s fees. The motions for directed verdict are denied as moot. This constitutes the Decision and Order of the Court.

_________________________

Hon. Reginald A. Boddie

Acting Supreme Court Justice