Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered on July 8, 2004, which denied its motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by
proof that it submitted claims, setting forth the fact and the amount of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In opposition, defendant contended that the claims were properly denied based on, inter alia, the assignors’ failures to attend independent medical examinations (IMEs).

Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of [*2]medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed on the record that defendant timely denied the claims pertaining to assignors Alex Kapitonov and Leny Petrov. However, defendant has failed to establish by proof in admissible form proper mailing of the pre-claim IME requests as to these assignors. Defendant submitted the affidavits of an employee of Allegiance Health Medical P.C. which schedules IMEs for defendant, and the affidavit of its “no-fault specialist and manager.” The affidavits, however, are insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the IME request letters were actually mailed. Nor did the affidavits contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Careplus Med. Supply v General Assur. Co., 7 Misc 3d 126[A], 2005 NY Slip Op 50429[U] [App Term, 9th & 10th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, defendant has failed to sustain its defense of nonattendance of scheduled pre-claim IMEs as to these assignors. There is also no merit to defendant’s argument on appeal that the claim for services rendered to assignor Petrov was properly denied on the additional ground of improper and/or excessive charges, since in
opposition to plaintiff’s motion for summary judgment, defendant failed to submit any proof in admissible form in support of this defense.

The claim pertaining to assignor Christina Tomlinson was not timely denied within the 30-day prescribed period (see 11 NYCRR 3.8 [c]), nor did defendant produce competent proof in admissible form to establish that the 30-day period was extended by timely verification requests for medical records and for a post-claim IME (see 11 NYCRR 65-3.5 [a]). Defendant’s submissions were insufficient to establish proper mailing of said verification requests (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, supra; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, supra). Moreover, even assuming proper proof of mailing, defendant has failed to demonstrate that it complied with the follow-up requirements applicable to post-claim verification requests (see 11 NYCRR 65-3.6 [b]). Accordingly, as to this claim, defendant is precluded from asserting its defense of nonattendance at the scheduled IME (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rios and Belen, JJ., concur. [*3]

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

There appears to be no issue as to the mailing of a timely denial by the defendant as to the claim of two of the three assignors (Kapitonov and Petrov) due to said assignors’ failure to attend pre-claim independent medical examinations (IMEs).

As regards to Ms. Tomlinson, the defendant noticed her to appear for a pre-claim IME by letter dated November 12, 2002 scheduling an exam to be held on December 4, 2002. The Tomlinson claim was submitted on November 22, 2002 which was after the notice but prior to the time to appear. Upon Ms. Tomlinson’s failure to appear on December 4, 2002, the defendant noticed her to appear by letter dated December 10, 2002 for a rescheduled IME on December 24, 2002. Although I do not believe that defendant was required to provide for a re-scheduled exam for a pre-claim IME, I cannot fathom that it should be penalized for giving the plaintiff’s assignor a further opportunity to comply. Therefore the 30 day “delay” letter, although similarly unnecessary was nevertheless timely, effective and not inappropriate in this instance. It should however be understood that once an IME is demanded prior to the filing of a claim (pre-claim IME) then any and all subsequent requests for medical examinations will not alter the status of the original demand. It is abundantly clear that the insurer is not seeking an IME as a post-claim request for additional verification which would require compliance with the protocols set forth under the claim provisions. The mere fact that a subsequent request for an IME is sent after the plaintiff files a claim does not transform a second (or third) notice to reschedule a pre-claim IME into a post-claim additional verification request for an independent medical examination. Upon Ms. Tomlinson’s failure to attend the rescheduled IME, the defendant sent a timely denial of claim notice.

The remaining issue concerns the sufficiency of the defendant’s affidavits relating to the mailing of the various IME requests. Although the defendant’s affidavits do not contain detailed mailing procedures necessary to establish proof that a certain item was mailed when faced with a sworn statement that it was not received, I do find that the sworn statements by defendant’s medical examination “scheduler” are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]). Further, I find that the defendant’s timely denials of all of the plaintiff’s claims on the grounds that plaintiff’s assignors failed to attend reasonably requested pre-claim IME’s are sufficient to warrant denial of the plaintiff’s motion for summary judgment.
Decision Date: July 07, 2005