Chiropractic Neurodiagnosis, PC v Travelers Indem. Co.

[*1] Chiropractic Neurodiagnosis, PC v Travelers Indem. Co. 2006 NY Slip Op 50257(U) [11 Misc 3d 1057(A)] Decided on February 5, 2006 Civil Court Of The City Of New York, New York County Kern, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2006
Civil Court of the City of New York, New York County

Chiropractic Neurodiagnosis, PC, as assignee of CELINA CASTRILLON, Plaintiff,

against

Travelers Indemnity Co. & TRAVELERS PROPERTY CASUALTY CO. ALL D/B/A THE TRAVELERS, Defendant.



031301/05



Douglas H. Sanders, Esq.

Baker, Sanders, Barshay, Grossman, Fass,

Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

David Schierholz, Esq,

Moore & Associates

One Whitehall Street, 8th Floor

New York, NY 10004

Cynthia S. Kern, J.

Plaintiff commenced the instant action to recover from defendant insurance company first party no-fault benefits for medical supplies it rendered to its assignor after its assignor was involved in a motor vehicle accident. It moves for summary judgment on the ground that defendant did not timely pay or deny the claim. Defendant cross moves for summary judgment on the ground that the medical services provided were not medically necessary. For the reasons set forth below, plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment are denied.

Insurance Law 5106(a) and 11 NYCRR 65-3.8(c) provide that a no-fault insurer shall either pay or deny a claim for no-fault benefits within thirty days after receipt of the claim. This thirty day period may be extended if within fifteen days from receipt of the initial verification forms an insurer demands additional verification of a claim. (See 11 NYCRR 65-3.5[b]). An insurer will be precluded from raising any noncoverage defenses to an action if it does not respond to a claim within thirty days. (See Presbyterian Hospital in the City of New York v [*2]Maryland Casualty Co., 90 NY2d 274 [1997]; Central General Hospital v Chubb Group of Insurance Cos., 90 NY2d 195 [1997]; Zappone v Home Insurance Co., 55 NY2d 131 [1985]). The law is well established that lack of medical necessity is a noncoverage defense to a claim for no-fault benefits which is waived if it is not included in a timely denial. (Id.)

To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to defendant, that defendant received the claim and that defendant failed to pay or deny the claim within thirty days. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d 133(A) [App Term, 2nd & 11th Jud Dists 2003]; King's Medical Supply Inc. v Country-Wide Ins. Co., 783 NYS2d 448 [NY City Civ Ct 2004]). Once plaintiff has established its prima facie case, the burden shifts to defendant to come forward with admissible evidence demonstrating the existence of a material issue of fact. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133).

In the instant action, plaintiff has sufficiently established its prima facie case by submitting a signed assignment of benefits form, a copy of its proof of claim form, the affidavit of a person with personal knowledge of the claim and sufficient proof that it timely mailed the claim form and that defendant did not pay or deny the claim within thirty days. Since plaintiff has established its prima facie case, the burden shifts to defendant to come forward with admissible evidence demonstrating the existence of a triable issue of fact. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133).

In the instant action, plaintiff is not entitled to summary judgment as defendant has sufficiently established a triable issue of fact as to whether it timely mailed a denial of the claim based on lack of medical necessity. Defendant is also not entitled to summary judgment as there are disputed factual issues as to whether the denial was timely sent. Proof of mailing may be established by either proof of actual mailing or an affidavit from someone with personal knowledge of the mailing or a description of the standard office practice or procedure for mailing designed to ensure that defendant's requests were properly addressed and mailed. (See Amaze Medical Supply, Inc. v Allstate Insurance Company, 3 Misc 3d at 133). In Hospital for Joint Diseases v Nationwide Mutual Ins. Co., the Appellate Division, Second Department specifically held that the affidavit of defendant's claims manager who described defendant's office practice and procedure with respect to the mailing but who had no personal knowledge of the actual mailing was sufficient to create a triable issue of fact to defeat plaintiff's motion for summary judgment but was insufficient to entitle defendant to summary judgment on its cross motion.[FN1] (See Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d 374 [2nd Dept 2001]. See also Hospital for Joint Diseases v New York City Transit Authority, 16 AD3d 376 [2nd Dept 2005]; King's Medical Supply, Inc. v Hereford Insurance Co., 5 Misc 3d 55 [App Term, 9th & 10th Jud Dists 2004]). Similarly, in King's Medical Supply, Inc. v Hereford Ins. Co., [*3]the court found that the affidavit of defendant's claim adjuster who attested to defendant's routine office practice and procedure was sufficient to raise a triable issue of fact as to whether the denial was timely sent so as to defeat plaintiff's motion for summary judgment.

In the instant action, defendant has sufficiently established a triable issue of fact as to whether it timely denied plaintiff's claims. Defendant submitted the affidavit of its claims representative Danielle Stoessel who states that the defendant received plaintiff's claim forms on February 14, 2005 and February 17, 2005 and issued a denial dated March 8, 2005. She states that she knows the denial was mailed on March 8, 2005 based on her knowledge of the defendant's office practices. Ms. Stoessel's affidavit sufficiently raises a triable issue of fact as to whether defendant timely denied plaintiff's claims. However, her affidavit is insufficient to entitle defendant to judgment as a matter of law as she has no personal knowledge that the denial was actually mailed on March 8, 2005 in accordance with defendant's office practices and procedures. (See Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d at 374. See also Hospital for Joint Diseases v New York City Transit Authority, 16 AD3d at 376; King's Medical Supply, Inc. v Hereford Insurance Co., 5 Misc 3d at 55). Accordingly, plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment are denied.

Plaintiff's argument that it is entitled to summary judgment even if the denial was timely sent on the ground that defendant has failed to submit proof in admissible form concerning its claim of lack of medical necessity is without basis. Defendant has submitted a peer review report by Dr. Ciuffo with an accompanying sworn to affidavit. The other arguments made by plaintiff as to the inadequacy of the peer review report are without merit. The court need not reach the issue as to whether defendant is entitled to summary judgment on its claim that the services were not medically necessary as there are disputed factual issues as to whether the denial was timely sent.

Based on the foregoing, plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment are denied. This constitutes the decision and order of the court.

Dated:Enter: ____________________________

J.C.C. Footnotes

Footnote 1:To the extent that the Appellate Term, Second Department's decision in Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., (6 Misc 3d 137[A] [App Term, 2nd & 11th Jud Dists 2005]) holds that an affidavit by defendant's employee describing the standard office practice or procedure for mailing is insufficient to defeat a motion for summary judgment, that decision is inconsistent with the holding of the Appellate Division in Hospital for Joint Diseases v Nationwide Mutual Insurance Co., 284 AD2d 374 [2nd Dept 2001].