Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2005 NY Slip Op 50348(U))

District Court of Nassau County, First District

14267/04 325d

Vito M. DeStefano, J.

This no-fault action arises out of an accident that occurred on December 6, 2002. The plaintiff provided medical treatment to Keith Elman and thereafter submitted Forms N-F5 and UB-92 to the defendant in the amount of $5,567.67. The defendant did not pay or deny the claim within 30 days of receipt. The plaintiff now moves for summary judgment. The defendant opposes, arguing, inter alia, that: plaintiff’s claim is premature because requests for additional verification were made and not responded to; plaintiff’s claim is improper because it failed to obtain a properly executed assignment of benefits; plaintiff has failed to submit proof of medical necessity.

The plaintiff’s motion is granted for the following reasons:

A medical provider makes a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the necessary billing forms were mailed and received, and that payment of no-fault benefits was overdue (11 NYCRR 65.15 [g]; Insurance Law 5106[a]; New York Hospital Medical Center of Queens v Motor Vehicle Accident Indemnification Corp., 12 AD3d 429 [2d Dept 2004]; Mary Immaculate Hospital v Allstate Insurance Company, 5 AD3d 742 [2d Dept 2004]; A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. v Prudential [*2]Property & Casualty Insurance Co., 2005 NY Slip Op 25032 [App. Term. 1st Dept 2005]). Once the plaintiff meets its burden, the burden shifts to the defendant to show the existence of a triable issue of fact.

Here, plaintiff’s motion papers and supporting exhibits establish that no-fault forms were received by the defendant on January 13, 2003 and that defendant never paid or denied the claim. Indeed, defendant confirms these facts in its opposition papers. Accordingly, plaintiff has satisfied its prima facie burden. Defendant, in contrast, has failed to meet its burden by raising any issues of fact.

In this regard, defendant’s argument that the plaintiff’s claim is premature is without merit. It is true that “[a] claim need not be paid or denied until all demanded verification is provided” (New York Hospital Medical Center of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2d Dept 2002] citing 11 NYCRR 65.15 [g][1][I]), however, it is incumbent upon the defendant insurer to demonstrate with sufficient proof that a timely request for verification was actually made.

In Contemp. Med. Diag. & Treatment, P.C. v Government Employees Insurance Co. (2005 NY Slip Op 50254U), decided March 2, 2005, the Appellate Term, Second Department, rejected the insurer’s assertions as to what constituted adequate proof of mailing of a request for verification:

[T]he assertion of defendant’s no-fault claims examiner that it was “the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated” was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant’s opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the 30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra).

At bar, the affidavit of litigation representative Jeffrey Stangle submitted in opposition to the motion is wholly inadequate to establish an issue of fact as to whether timely request for additional verification was made, or, in fact, if any request for verification was made at all (see, also, Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2d Dept 2001]). [*3]Notably, Mr. Stangle’s affidavit states only that “my office mailed a request for additional verification,” without indicating any personal knowledge of the mailing. The affidavit does not provide any details concerning when or how the request was allegedly made; nor does it describe any standard office practices to ensure that the requests were properly mailed. Therefore, the plaintiff’s claim is not premature.

The court also rejects defendant’s argument that the plaintiff’s claim is improper due to a defective assignment of benefits. The assignment is not signed by Mr. Keith Elman, but instead contains the notation “signature on file”. Moreover, omitted from the assignment is certain revocation language required by 11 NYCRR 65-3.11(b)(i). Significantly, however, defendant waived any defects in the assignment by failing to timely object to them (e.g., New York Hospital Medical Center of Queens v. New York Central Mutual Fire Ins. Co., 8 AD3d 640 [2d Dept 2004] [Defendant’s “objection to the claim or the basis of lack of proof of assignments were without merit” because it failed to establish that it requested verification of such assignments]; see, also New York Hospital Medical Center of Queens v. Motor Vehicle Accident Indem. Corp., 12 AD3d 429 [2d Dept 2004] [Defendant’s failure to object to the adequacy of plaintiff’s claim form within 10 days of receipt constituted a waiver of any defenses based thereon]; New York Hospital Medical Center of Queens v AIU Insurance Co., 8 AD3d 456 [2d Dept 2004]; Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11 [2d Dept 1999]; Presbyterian Hosp. in the City of New York v. Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 [2d Dept 1994]; AB Medical Services, PLLC v. Prudential Property & Casualty Ins. Co., 2005 NY Slip Op 25032 [NY App Term, Jan. 20, 2005]).

The defendant’s opposition papers fail to discuss, or even acknowledge, the controlling appellate authority on the issue of waiver. Instead, in support of its argument that plaintiff’s motion should be denied because of a defective assignment, defendant cites an opinion of the Office of the General Counsel to the Superintendent of Insurance (State of New York Insurance Department, Opinion dated February 18, 2003 [Assignment used by provider must contain prescribed statutory language]) and case law recognizing the Superintendent’s broad power to interpret, clarify and implement legislative policy (Ostrer v Schenck, 41 NY2d 782 [1977]).

The Court notes that there is no conflict between such authority and those cases which hold that defects in plaintiffs’ claim forms, including the assignment, are waived if not timely objected to. Moreover, if a conflict did exist, this court would be bound to follow appellate authority that is directly on point.

As to defendant’s argument regarding the failure of proof of medical necessity, again, defendant waived any such contention by failing to raise it in a timely denial (see, Bonetti v Integon National Ins. Co., 269 AD2d 413 [2d Dept 1999]; Mount Sinai Hosp. v. Triboro Coach, supra; Amaze Medical Supply Inc. v. Eagle Ins. Co., 2 Misc 3d 128A [NY App Term 2003]).

The defendant’s remaining contentions are also without merit. [*4]

Plaintiff is awarded judgment against the defendant in the amount of $5,567.67, plus statutory interest at 2% per month from February 13, 2003, and attorneys’ fees of 20%, not to exceed $850. In addition, plaintiff is awarded $50.00 costs on this motion.

So ordered:

DISTRICT COURT JUDGE

Dated:March 22, 2005

CC:Joseph Henig, P.C.

Freiberg & Peck, LLP

VMD/mp