A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. 2006 NY Slip Op 50504(U) [11 Misc 3d 137(A)] Decided on March 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2004-1818 K C. NO. 2004-1818 K C

A.B. Medical Services PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. a/a/o RAYMOND MICHELINE, YVELYNE GARRAUD and FLAVIE GUERRIER, Appellants,

against

Prudential Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered October 29, 2004. The order denied plaintiffs' motion for summary judgment.

Order modified by granting plaintiff A.B. Medical Services PLLC partial summary judgment in the sum of $11,903.39, and plaintiff D.A.V. Chiropractic P.C. summary judgment in the sum of $134.80; as so modified, affirmed without costs. [*2]

Appeal as taken by plaintiff Lvov Acupuncture P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, plaintiffs A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. established their entitlement to summary judgment as to all their claims by proof that they submitted statutory claim forms, setting forth the fact and amounts 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]). We note that an absent index number on one of numerous documents submitted in support of an otherwise properly indexed motion was an inappropriate ground to deny the relief sought. While all papers submitted to a court must bear the action's index number (see CPLR 2101 [c]; Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.5), such a defect is not jurisdictional, and is waived if the opposing party fails to object by returning the paper to the party serving it within two days of receipt "with a statement of particular objections" (CPLR 2101 [f]; Neveloff v Faxton Children's Hosp. & Rehabilitation Ctr., 227 AD2d 457, 457 [1996]; Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In any event, absent prejudice to a "substantial right of a party," such defects should be disregarded (CPLR 2101 [f]; e.g. Gau v Kramer, 289 AD2d 804, 805 [2001]).

We also do not agree that the allegedly defective proof of assignments merited the motion's outright denial. Defendant failed timely to seek verification of the assignments or even specifically to allege a deficiency in the assignments in its claim denial forms, and thereby "waive[d] . . . any defenses with respect [to them]" (Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50790[U] [App Term, 2d & 11th Jud Dists]; see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The court below also incorrectly determined that all claim denials were timely; in fact, they were untimely as to numerous claims, specifically, A.B. Medical Services PLLC's claims with respect to assignor Micheline for $205.46, $182.37, $564.48, $218.35, $71.06, $230.10, and $604.24; with respect to assignor Garraud for $182.37, $586.66, $218.35, $120.00, $230.10, $604.24, $1,972.08, $1,999.12, $71.06, and $71.40; and with respect to assignor Guerrier for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08. As to plaintiff D.A.V. Chiropractic P.C.'s claim for $134.80 for treatment rendered to Guerrier, defendant proved no claim denial
whatsoever. Absent a tolling of the statutory claim determination period or proof that defendant established a triable defense which survives the preclusive effect of an untimely denial, summary judgment should have been granted as to these claims.

As to all of A.B. Medical Services PLLC's claims regarding assignor Micheline, aside from the claim for $250.88, defendant denied the claims, in part, because plaintiff's assignor failed to attend a requested examination under oath. However, defendant produced no documentary proof that it mailed assignor a written examination request, nor did its affiant assert personal knowledge of actual mailing or of facts creating a presumption of same, nor was there [*3]any admission of receipt by plaintiff, its assignor, or assignor's representative (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). Additionally, defendant also offered no proof that the instant insurance policy contained an endorsement authorizing such a form of verification (id.). Thus, defendant failed to toll the claim determination periods by a proper verification request.

Insofar as defendant denied certain of the claims on the ground that plaintiff A.B. Medical Services PLLC is not formed and operated "in accordance with Article 15 of the [Business Corporation Law]," a defense sounding in fraud (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005] ["State Farm's complaint centers on fraud in the [*4]
corporate form rather than on the quality of care provided"]) which survives the preclusion sanction (id. at 320), defendant failed to assert a factual basis in its opposition papers sufficient to support a "founded belief" that A.B. Medical Services PLLC is ineligible to obtain no-fault benefits by reason of a fraudulent corporate filing (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Given A.B. Medical Services PLLC's unrebutted proof that it has a duly registered corporate presence in New York, defendant's bare, conclusory assertion in opposition to the motion, that said plaintiff is not formed or operated in accordance with the Business Corporation Law, failed to establish a triable issue of material fact.

The remaining, conclusorily asserted defenses, that the billing is "inaccurate or misleading" and not in accordance with the fee schedules, that plaintiff failed to prove the employment status of the particular provider, and that the treatment "was not related to the accident," all fail to survive the preclusive effect of an untimely denial, and in any event, as to the claims timely denied, they are without merit (id.; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581, 582 [2005]; New York Hosp. Med. Ctr. of Queens v Country-wide Ins. Co., 295 AD2d 583, 586 [2002]; Rockaway Blvd. Med. P.C. [*5]
v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]; Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864[U] [App Term, 9th & 10th Jud Dists]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

As for all claims regarding assignor Garraud, whether timely or untimely denied, the defenses and merits thereof are as previously stated. Additionally, the peer review report submitted in opposition to the motion, cited as a basis for the denial of plaintiff A.B. Medical Services PLLC's claims for $1,972.08 and $1,999.12, failed to invoke the penalties of perjury (Lubrano v Papandreou, 262 AD2d 457, 457 [1999]; Tattegrain v New York City Trans. Auth., 2002 NY Slip Op 40296[U] [App Term, 2d & 11th Jud Dists]) and there is no reference to CPLR 2106 upon which it may be inferred that the affiant invoked the language of the statute (Jones v Schmitt, 7 Misc 3d 47, 48 [App Term, 2d & 11th Jud Dists 2005]), nor did defendant "offer[ ] an[ ] acceptable excuse as to why [it] failed to obtain a sworn, admissible report" (Lubrano v Papandreou, 262 [*6]
AD2d at 458; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, defendant's untimely denial of these claims precludes the defense asserted in the report. As to defendant's alleged demands to conduct independent medical examinations (IMEs) of assignor Garraud, defendant offered no proof of mailing of any such demands nor did its affiant state sufficient facts upon which a presumption of mailing may be inferred (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra). Thus, summary judgment should have been granted as to all claims for treatment rendered assignor Garraud.

As to the claims for treatment rendered Guerrier, aside from the above-noted claims which were untimely denied or for which no denial was proved, Guerrier admitted, via a letter from his counsel to defendant, that he failed to attend two properly scheduled independent medical examinations and two follow-up examinations. Unsatisfied IME requests made prior to a claim's filing remove the presumption of medical necessity which attaches to the claim forms, and absent additional proof of medical necessity, a provider's motion for summary judgment based solely on the proof of claims must be denied (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). Upon assignor's conceded failure to attend those examinations, there remains a triable issue of claimant's assertion they were improperly sought, and whether plaintiff can offer a valid excuse for the nonattendance, and if not, whether the treatment for said claims was medically necessary (e.g. A.B. Med. Services PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]). Therefore, as to the claims for $1,972.08, $1,999.12, $699.68, $71.06 (submitted 2/24/03), $260.64, $71.06 (submitted 3/31/02), $71.40, $71.06 (submitted 4/28/04), and $62.72, for treatment rendered Guerrier, summary judgment was properly denied.

To summarize, partial summary judgment should have been granted to plaintiff A.B. Medical Services PLLC in the sum of $11,903.39, representing claims for treatment rendered assignor Micheline and Garraud, and, with respect to the claims of Guerrier, the claims for $182.37, $205.46, $506.64, $71.06, $230.10, $604.24, and $1,972.08, which were untimely denied. Summary judgment should also have been granted as to plaintiff D.A.V. Chiropractic P.C.'s claim for $134.80. The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder as to all claims for which summary judgment is
granted, and for all further proceedings on plaintiff A.B. Medical Services PLLC's remaining claims for treatment rendered assignor Guerrier.

Since none of plaintiff Lvov Acupuncture P.C.'s claims for treatment rendered its assignors was asserted in the motion below, it was not aggrieved by the court's determination of the order from which it appeals, and said appeal is dismissed (see CPLR 5511; Praeger v Praeger, 162 AD2d 671 [1990]).

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
A.B. MEDICAL SERVICES PLLC
D.A.V. CHIROPRACTIC P.C.
LVOV ACUPUNCTURE P.C.
a/a/o RAYMOND MICHELINE, YVELYNE GARRAUD
and FLAVIE GUERRIER,
Appellants,

-against-

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY,
Respondent.

Golia, J., concurs in part and dissents in part in the following memorandum.

I concur in the dismissal of the appeal taken by plaintiff Lvov Acupuncture P.C. and dissent as to the granting of partial summary judgment in favor of the remaining plaintiffs.

Contrary to the holding of the majority, I find that the claims were never "completed" and therefore the 30-day time period in which to pay or deny the claims has never commenced. The plaintiffs, in an attempt to establish a prima facie entitlement to judgment, acknowledged that the defendant sent timely requests for verification. Although plaintiffs asserted that they sent responses to those requests for verifications, plaintiffs failed to provide any proof of mailing the responses.

Accordingly, I find that the claims process has never been completed and therefore the time in which the defendant has to pay or deny has not started to run against the defendant.
Decision Date: March 27, 2006