Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50905(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, Queens County (A. Agate, J.), entered August 23, 2002, denying its motion for summary judgment.

Order unanimously modified by granting partial summary judgment to plaintiff in the sum of $7,643.18, and matter remanded to the court below for the calculation of statutory interest, an assessment of attorney’s fees and for all further proceedings on the remainder of the claims; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits, plus statutory interest and attorney’s fees, for medical services rendered to its assignor,
pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary
judgment, which motion was denied by order of the court below entered August 23, 2002.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment in the amount of $7,643.18 by showing that it submitted complete proofs of claims to defendant in 2001, which were not timely paid or denied (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant contends that said claims were timely denied inasmuch as the statutory period was tolled since it requested verification in the form of an examination under oath of the assignor. However, the letters attached to defendant’s opposition papers do not toll the statutory period since they do not request verification; rather they inform plaintiff that its bills were being delayed because it was requesting examinations of several parties involved in the loss (see e.g. Sehgal v Royal Ins. Co. of Amer., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists] [a letter stating that a peer review was to be conducted did not amount to a request for verification]). Moreover, it is noted that a request for such an examination would not toll the statutory period inasmuch as there was no provision in the no-fault regulations for same prior to April 5, 2002 (see
A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded as to said claims (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra) and has not shown a triable issue of fact (see Alvarez, 68 NY2d at 324).

Plaintiff concedes that defendant timely denied its $820 acupuncture claim, $1,010.74 of its $1,212.16 physical therapy claim, and its $438.10 chiropractor claim, and argues that defendant improperly denied said claims on the ground of concurrent treatment. A review of the record, however, indicates that plaintiff failed to establish its prima facie entitlement to summary judgment for its $438.10 claim since it did not provide a proof of claim therefor (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra), and we find that defendant validly denied the $820 and $1,010.74 claims on the grounds of “overlapping/excessive and/or concurrent care” and/or “services rendered by more than one physician.”

Accordingly, plaintiff is granted partial summary judgment in the principal sum of $7,643.18, and the matter is remanded to the court below for the calculation of statutory
interest and an assessment of attorney’s fees as to the claims on which defendant is
precluded, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: March 04, 2004