East Way Chiropractic, P.C. v Allstate Ins. Co. (2004 NY Slip Op 50642(U))

Civil Court of the City of New York, Queens County

119001/02

Baker, Barshy & Neuwirth, LLP By: David M. Barshay Esq., Attorneys for plaintiff,1393 Veterans Memorial highway, Ste 21N New York,11788, (631) 979-2906; Short & Billy P.C., By: Ellen Burach-Zion Attorneys for defendant, 217 Broadway Ste 300 New York, N.Y., 10007.

Timothy J. Dufficy, J.

Plaintiff East Way Chiropractic P.C. brought this action against Allstate Insurance Company to recover four separate no-fault payments under a uniform contract of insurance. A non-jury trial was held before this court on May 25, 2004.

FINDINGS OF FACTS

Tammy Figueroa, testified she worked in the billing department for the plaintiff East Way Chiropractic for approximetly five years. She stated that she was responsible for entering data in a computer program for medical bills and was responsible for keeping patient files and billing files in the ordinary course of business.

Ms. Figueroa was familiar with the files of Johnny Concepcion, Charles Taylor, Connie Charles and Jose Martin. Before any assignments were accepted, the office practice was to verify the identity of the patient. Ms. Figureoa stated that no payments were made to the plaintiff East Way except for partial payments made on behalf of Connie Charles. The claim form, to wit “the NF3” and assignments were accepted into evidence except for Jose Martin’s assignment which could not be located.

ISSUES

After plaintiff established a prima facia case, the issue of a timely denial was raised by the plaintiff. The only proof submitted by the defendant was the “NF10” denials which were timely on their face. Defendant’s witness Hector Herrera testified that he was a claim adjuster for defendant Allstate Insurance Company for the past three years and was familiar with the Taylor, Martin and Charles no-fault files. Mr. Herrera received training as to the procedure used by Allstate when a claim is denied. Mr. Herrera testified that the information is entered into the network or main frame computer with a claim number and the injured party’s name. Mr. Herrera stated he was assigned to the instant claims a few days before trial. He testified through the in house training he learned how data is entered into the computer. Denial forms are mailed from a central office in Texas. Mr. Herrera testified through his training, he learned that the forms are mailed out the same day they are entered into the computer or at latest the next day, unless it was a Friday or a holiday weekend. On cross examination, Mr. Herrera admitted that he testified at a prior proceeding that he thought the mailing were done by a third party. However, Mr. Herrera was later permitted to correct his testimony at that proceeding. The court finds that Mr. Herrera [*2]lacks personal knowledge of the of the mailing procedure used in the Texas facility and in fact never visited or worked in the Texas office. No other evidence of a timely mailing was offered by defendant.

As pointed out by the plaintiff in their trial memorandum of law, the law is well settled in that for an insurer’s denial of claim form to be deemed timely pursuant to 11 NYCRR 65.15(g) (3) and Insurance Law§5106(a), the insurer must not only prove that it generated the denial document within thirty (30) days of receipt of the applicants claim, but that it also mailed the denial to the applicant within the same time period. See, Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 A.D.2d 374 (2nd Dept. 2001); A. B. Medical Services, PLC v. GEICO Ins., 2 Misc. 3rd 26 (APP. Term 2nd and 11th J.D. Dist. 2003). The court holds that personal knowledge of the actual mailing or at least personal knowledge of the actual procedure is required. See, S& M Supply Inc. V. GEICO Ins., 2003 N. Y. Slip Op. 51192 (U) (App. Term. 2nd and 11th J.D. Dist. 2003). In the case at bar, the witness did not have personal knowledge of the Texas mailing procedure and in fact never visited or worked at the Texas office. Therefore, the defendant failed to establish that the denials were timely mailed to the applicant within thirty (30) days.

Accordingly, judgment is awarded to the plaintiff for the amount sought in the complaint for services provided to Johnny Concepcion ($122.14), Charles Taylor ($1615.58), Jose Martin ($1916.46). As for the claim for services provided to Connie Charles partial judgment in the amount of $470.96. The plaintiff is directed to submit a judgment to the court together with statutory interest and attorney fees.

Dated: June 23, 2004 _________________________

TIMOTHY J. DUFFICY, J.C.C.