Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co.

[*1] Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co. 2006 NY Slip Op 51672(U) [13 Misc 3d 127(A)] Decided on August 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1263 Q C. NO. 2005-1263 Q C

Prestige Medical & Surgical Supply, Inc., a/a/o Irina Litvak, Tascia Pitt, Patricia Walker, Appellant,

against

Clarendon National Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 17, 2005. The order denied plaintiff's motion for summary judgment.

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

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider generally establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the [*2]
loss 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). A provider establishes the "submission" of the claim form by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. In the instant case, the lower court properly found that plaintiff's moving papers were insufficient to demonstrate that any of the claim forms were properly mailed. However, said deficiency was cured by defendant's acknowledgment of receipt in its denial of claim forms (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]) and by the admissions of the claims' receipt in the affidavits of defendant's claims adjusters. Accordingly, plaintiff established a prima facie case, and the burden then shifted to defendant to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Contrary to the determination of the court below, defendant failed to establish that the denial of claim forms were timely mailed to plaintiff. The affidavits of defendant's claims adjusters merely stated that the claims were timely denied without asserting personal knowledge of the mailing or setting forth sufficient facts to create a presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; 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]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d & 11th Jud Dists]). Accordingly, since defendant failed to demonstrate that it denied the claims within the 30-day prescribed period following their receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]), it was precluded from raising its defenses, with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]).

We need not reach the issue of whether the letters which stated that payment of benefits was being delayed pending receipt of hospital/physician records were, in effect, verification requests since defendant's acknowledged receipt of the information recommenced the running of the 30-day claim determination period. Since defendant failed to submit adequate proof of having mailed the claim denials within that period, it did not meet its burden of raising a triable issue of fact.

In view of the foregoing, the court below erred in denying plaintiff's motion for summary judgment. Accordingly, the order is reversed, plaintiff's motion for summary [*3]
judgment 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.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I am constantly amazed by the continued failure of defendants to obtain and submit affidavits by someone with personal knowledge in order to establish sufficient proof of mailing of documents such as denials (NF-10), verifications, requests for independent medical examinations, etc.

Nevertheless, I wish to note that I do not agree with certain propositions of law set forth in cases cited by the majority which are inconsistent with my prior expressed positions and generally contrary to my views.

I further wish to note that I would find that the letters sent to plaintiff herein denoted as "delay letters" should serve to toll the 30-day claim determination period. They are, in fact, verification requests irrespective of terminology, indeed at the very least they are a functional equivalent of a verification request.

In support of this finding, I cite the majority opinion in the case of Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc. (8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists]). Whereas I filed a concurrence in that case and did not reach the issue at hand, the case held that even if a document is labeled a verification request, it will not serve to toll the 30-day period if it merely informs that the claim is delayed pending an investigation but fails to specify the particular information sought.

The "delay letters" in the case at bar not only informed the plaintiff that payment of the claim was being delayed, but also specifically set forth the particular information sought, to wit: the hospital/physician records. Clearly these "delay letters" must serve as a verification request inasmuch as the plaintiff was well aware of what information was required to complete the claims filed. They therefore serve the same purpose. For me, this is a matter of substance over form.

I point to plaintiff's counsel's assertion in his moving papers that this information should have been requested from the prescribing physician and not from the plaintiff herein which does not maintain or have direct access to a medical file. Given that assertion, plaintiff has effectively acknowledged that the defendant must seek the requested information from a different source. That is exactly what the defendant herein did.

Decision Date: August 18, 2006