Bath Med. Supply, Inc. v Country Wide Ins. Co.

[*1] Bath Med. Supply, Inc. v Country Wide Ins. Co. 2009 NY Slip Op 51145(U) [23 Misc 3d 147(A)] Decided on June 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-686 Q C.

Bath Medical Supply, Inc. as assignee of CHARLES E. BODDY, Respondent,

against

Country Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 11, 2008, deemed from a judgment of the same court entered March 31, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 11, 2008 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $2,101.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion denied.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it had timely denied the claims on the ground that the supplies provided were not medically necessary. The Civil Court granted plaintiff's motion, holding that defendant failed to establish that the verification requests which preceded defendant's denials were properly issued, so that defendant's denials were untimely. The instant appeal by defendant ensued. A judgment in favor of plaintiff was subsequently entered.

Contrary to defendant's contention, the affidavit of plaintiff's billing manager established the mailing of the claims in question since she stated that she had personally mailed the claims on February 10, 2005 (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff's affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff made out its prima facie entitlement to summary judgment. [*2]

However, the Civil Court erred in finding that defendant failed to properly toll the prescribed 30-day period, since the affidavit of defendant's no-fault litigation supervisor sufficiently established the timely mailing of the verification requests by setting forth a detailed description of the standard office practice and procedure used to ensure that the verification requests were properly addressed and mailed (see Residential Holding Corp., 286 AD2d 679). For the same reason, the affidavit also established the timely mailing of defendant's denial of claim forms (id.).

Plaintiff contends that defendant's opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant's no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth different dates as the dates on which final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant's no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant's no-fault litigation supervisor or otherwise nullify defendant's position that the claim determination period was tolled. As a result, inasmuch as the affirmed peer review report was sufficient to demonstrate the existence of an issue of fact as to the medical necessity of the supplies plaintiff furnished, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009