A.B. Med. Servs., PLLC v Country-Wide Ins. Co.

[*1] A.B. Med. Servs., PLLC v Country-Wide Ins. Co. 2009 NY Slip Op 51016(U) [23 Misc 3d 140(A)] Decided on May 19, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and MOLIA, JJ
2008-276 N C.

A.B. Medical Services, PLLC LVOV ACUPUNCTURE, P.C. and RW HEALTH PLUS CHIROPRACTIC, P.C. a/a/o WILLIAM JOSEPH, Appellants,

against

Country-Wide Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), entered December 10, 2007. The order denied plaintiffs' motion for partial summary judgment.

Order modified by providing that plaintiffs' motion for partial summary judgment is granted to the extent of awarding plaintiff A.B. Medical Services, PLLC summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36; plaintiff Lvov Acupuncture, P.C. summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98; and plaintiff RW Health Plus Chiropractic, P.C. summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below for the calculation of statutory interest and attorney's fees thereon, and for further proceedings on all remaining claims.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for partial summary judgment on various claims, and defendant opposed the motion. The court below denied plaintiffs' motion. This appeal by plaintiffs ensued.

Since defendant did not argue in the court below that plaintiffs' medical biller and billing manager failed to establish that he possessed personal knowledge of plaintiffs' mailing practices and procedures so as to lay a foundation for the admission, as business records, of plaintiffs' [*2]documents, we do not pass on the propriety of the determination of the court below with respect thereto (see Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

The record shows that defendant failed to pay or deny the claims by A.B. Medical Services, PLLC (A.B. Med.) seeking the sums of $230.10 and $71.40 within the 30-day prescribed period and that it also failed to establish that such period was extended by its issuance of a timely request for verification. Consequently, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), with exceptions not relevant to these claims. As a result, defendant failed to establish the existence of a triable issue of fact with respect to said claims, and A.B. Med. was entitled to summary judgment thereon.

An insurance carrier's 30-day period in which to either pay or deny a claim may be extended where the insurer submits, within 15 business days of its receipt of the NF-3 claim form, a request for additional verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). "A claim need not be paid or denied until all demanded verification is provided" (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]; cf. Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]). As a result, the claims by plaintiff A.B. Med. in the sums of $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, and the claims by plaintiff RW Health Plus Chiropractic, P.C. (RW Health) in the sums of $290.64, $269.60 and $134.80 are overdue (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), and A.B. Med. and RW Health are entitled to summary judgment upon said claims (see Westchester Med. Ctr., 45 AD3d 676).

Plaintiffs' contention that defendant's submissions from the acupuncturist who performed the peer reviews were insufficient to raise a triable issue of fact with respect to the claims submitted by Lvov Acupuncture, P.C. (Lvov) is correct. Since the acupuncturist's peer review reports were unsworn, the reports were of no probative value (see Dowling v Mosey, 32 AD3d 1190 [2006]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Accordingly, defendant's submissions failed to raise a triable issue of fact as to medical necessity with respect to Lvov's claims in the sums of $650.50, $248.28 and $435.98, and Lvov is entitled to summary judgment upon said claims.

However, contrary to plaintiffs' contention, defendant, through the submission of the affidavit of its no-fault litigation supervisor and affirmed peer review reports established that the claims by A.B. Med. seeking the sums of $604.24 and $644.50, and by RW Health seeking the [*3]sums of $168.50 and $202.20 were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). As a result, A.B. Med. and RW Health are not entitled to summary judgment upon said claims.

Although plaintiffs argue that defendant's denial of a claim by A.B. Med. seeking the sum of $182.37 was untimely, plaintiffs' exhibits included a copy of said denial of claim form, which is timely on its face and which denied the claim based upon an affirmed peer review report which was also attached to plaintiff's moving papers. Given the affidavit of defendant's no-fault litigation supervisor setting forth defendant's standard office practice and procedure for the generation and mailing of defendant's denial of claim forms (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff is not entitled to summary judgment upon said claim.

In view of the foregoing, plaintiffs' motion for summary judgment is granted to the extent of awarding A.B. Med. summary judgment on its claims seeking to recover the sums of $230.10, $71.40, $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, Lvov summary judgment on its claims seeking to recover the sums of $650.50, $248.28 and $435.98, and RW Health summary judgment on its claims seeking to recover the sums of $290.64, $269.60 and $134.80, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

The decision and order of this court entered herein on November 26, 2008 (see 22 Misc 3d 132[A], 2008 NY Slip Op 52651[U] are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

McCabe, J. taking no part.
Decision Date: May 19, 2009