New York Hosp. Med. v Allstate Ins. Co.

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New York Hosp. Med. v Allstate Ins. Co. 2012 NY Slip Op 30418(U) February 7, 2012 Supreme Court, Nassau County Docket Number: 9981/11 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --- -- - - -- - - ---- --- --- ------- -- ---- - -- ---- -- --- -- -- -------- - -- -- - - .......- .........,.......... ...,.... ...... .... ........ .,................ .. - - - -- ---- -- - - ----..,..... - - -------- ------- - ...................,... ................ .....,.... ................. ---- ---- - - - - - - - -....... [* 1] SHORT FORM ORDER STATE- NASSAU COUNTY SUPREME COURTPRESENT: "ON. ANTHONY L.I)ARGA JUSTICE NEW YORK PART 6 THE NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS alalo LUIS ROBLES; THE NY ACK HOSPITAL alalo SANDRA SZPICEK; NYU- HOSPIT AL FOR JOINT DISEASES , ala/o RICHARD PLOCK, INDEJ( NO. 9981/11 J(J(J( MOTION DATE: 12/15/11 SEQUENCE NO. 001 , 002 Plaintiff( s), -against - ALLSTATE INSURANCE COMPANY DeJendant(s). Notice of Motion , Affs. & Exs...... ....... Notice of Cross- Motion , Affs & Exs.......... .................,.. ............................ ......... Affirmation in Reply..................................................................................................... Reply Affinllatiol1 & Exs.. ..,........ ......... Plaintiffs motion for summary judgment on its first cause of action , pursuant to CPLR 93212 , is granted , and defendant' s cross-motion for summary judgment on the first cause of action , pursuant to CPLR 93212 , is denied. The plaintiff health care providers and assignee of no- fault benefits commenced this action against the defendant , the insurer of the three assignors , to recover first party No Fault benefits. The actions were commenced by plaintiff, The New York Hospital Medical Center of Queens , as assignee of Luis Robles , The Nyack Hospital , as assignee of Sandra Szpieek , and NYU- Hospital for Joint Diseases , as assignee 01' Richard Plock , in three separate causes of action arising from three separate motor vehicle accidents. Plaintiffs moved for summary judgment on all three causes of action. Within its Reply Affirmation , counsel for plaintiff has withdrawn its second and third causes of action commenced by The Nyack Hospital , as assignee of Sandra Szpicek , and NYU- Hospital for Joint [* 2] Diseases , as assignee of Richard Plock. Defendant has cross-moved for summary judgment plaintiff's first cause of action , brought by The New York Hospital Medical Center of Queens aJaJo Luis Robles , on the grounds that plaintiff's assignor , Luis Robles , failed to appear for an Examination Under Oath. With respect to plaintiff's first cause of action involving the claim on behalf of Luis Robles , plaintiff contends that on May 24 2011 , plaintiff biled the defendant with a Form NF- for payment of a hospital bill in the sum of $18 574. 19. A form UB- 04 and DRG Master Output Report were attached to the bill. The bill was mailed certified mail , return receipt requested , and was received by the defendant on May 26 20 II. In support of its motion, plaintiff submits a copy of the certified mail and return receipts and an affidavit by Peter Kattis , who is employed by Hospital Receivable Systems , Inc. as a Biling Supervisor and Account Representative for the New York Hospital Medical Center of Queens. Mr. Kattis attests that on May 24 , 2011 , he mailed the hospital facility form (NF- 5 Form), for payment of the sum 01'$18 574. defendant by certified mail. , to the He further attests that the postal service returned the delivery receipt for same , which was signed for by a representative of the defendant on May 26 2011. Plaintiff contends that the defendant failed to payor issue a timely Denial of Claim form. Said biU remains unpaid. Accordingly, plaintiff contends that it is entitled to summary judgment on its first cause of action. The plaintiff has made a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no- fault benefits is overdue. (Insurance Law 5106(a); 11 NYCRR 65.15(g)(3); Mary Immaculate Hosp. v. Allstae Ins. Co. 5 A.D. 3d 742 , 774 N. Y.S. 2d Dept. 2004); Alvarez v. Prospect Hospital 68 N. Y.2d 320 508 N. 564 (2d 2d 923 (1986)). Once the movant has demonstrated a prima facie showing of entitlement to judgment , the burden shifts to the pary opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of a tact which require a trial of the action. (Zuckerman v. City of New York 49 N. Y.2d 557 (1980)). Defendant opposes plaintiffs motion and cross-moves for summary judgment on plaintiffs first cause of action on the ground that the defendant timely and properly denied [* 3] plaintiff's claim because plaintiff's assignor breached the policy conditions established pursuant EUO" ) which was 65- 1 (d) by failing to appear for an examination under oath (" to 11 NYCRR timely demanded by defendant. Defendant submits proof that within thirty days of receipt of , Luis plaintiff's bill , defendant sought the EUO of insured Mario Robles and plaintiff's assignor , by certified mail , return receipt Robles , by sending a letter , dated June 16 2011 , stating same , 2011. The Court notes that the affrmation of requested. The letter noticed the EUO for June 27 , states only that he " sent a letter (requesting an Edward Lannan , Esq. , submitted by the defendant EUO of the claimant) dated June 15 2011" without attesting to the date that the letter was actually mailed. The Court further notes that the certified mail receipt submitted by defendant , Luis Robles , failed to for said letter appears to be dated June 21 , 2011. Plaintiff's assignor appear at the first noticed EUO date on Monday, June 27 2011 and thereafter failed to appear for noticed EUOs on four additional occasions. After the fifth scheduled EUO had passed , on , defendant mailed an NFAugust 24 2011 , and counsel for Robles never rescheduled same l0 2011. Samc was Denial of Claim form to both plaintiff and its assignor , Robles, on September 1 mailed within thiliy days after Robles ' fifth failure to appear for the EUO and stated that plaintiff's claim was denied on the ground that Robles failed to appear for an EUO. Defendant contends that because Robles failed to appear for duly noticed EUO , there was a failure to comply with the terms of the no- fault policy, which is a condition precedent to insurer liability, and therefore Allstate properly denied plaintiff's claim and is entitled to summary judgment. The defendant has failed to establish a prima facie showing of entitlement to summary judgment , as the defendant has not submitted any proof that it sent a request for the EUO as additional verification within 15 days of the receipt of the NF- 5 form on May 26 2011. The 30 day time period to payor deny a claim is extended when the defendant requests additional verification within 15 business days of receipt of the claim , and once the defendant makes a timely request for verification , the time to payor deny the claim is tolled until the plainti ff (See , New York Presbyterian limp. provides the verification information to the defendant. American Transit Ins. Co. 287 A. Imaging, P. e. v. 2d 699 , 733 N. Y.S. 2d 80 (2d Dept. 200l); Nationwide Mutual Ins. Co. II Mise. 3d 135(A), 816 N. Ocean Diagnostic 2d 698 (N. Y. App. [* 4] Term. 2006)). In order to toll the 30- day period in which to payor deny the claim , a request for EUOs as additional verification to establish the proof of claim , must be done within 15 business (S&M Supp y, Inc. v. State Farm Mutual Insurance Company, 4 days of receipt of the claim. See Misc. 3d 130(A), 791 N. Y.S.2d 873 (N. Y. App. Term 2(04); Medical New York, P. e. 52382(U)(N. Y. App. Term 2011); v. 65- 11 NYCRR 5(b); Arco Lancer Ins. Co. 34 Misc. 3d 134(A), 2011 N. Y. Slip Op. Prime P.\ychological Services, PC v. Elrac, Inc. 1244(A), 906 N. Y.S. 2d 782 (N. Y.City Civ. Ct. 2009); Psych. 25 Misc. Massage Therapy Assoc. New Progressive Casualty Ins. Co. 5 Misc. 3d 723 , 789 N. Y.S.2d 661 (N. Y. City Civ. Ct. 20(4); York 2d 583 (2d Dept. 2006)). Presbyt. Ho.W v Allstate Ins. Co. 31 A.D. 3d 512 , 818 N. Allstate was required to demonstrate that its initial and follow-up requests for verification were (Infinity Health Products timely and that the assignor failed to appear f(x the EUOs. Progressive Ins. Co. 28 Misc. 3d 133(A), 2010 WL 2990124 (N. Y. Sup. App. Term. 2010)). As the defendant's submissions indicate that the letter noticing the initial EUO was not mailed until June 21 , 2011 , it was not requested in time to toll the thirty day time period to deny or pay the claim. The Comi further notes that defendant failed to submit copies of the celiified mail and return receipts for the letters dated June 27 , 2011 and August 12 201 () (the last EUO notice j the EUO scheduled on August 24 2011), and the affirmation of Edward Lannan , Esq. is insuffcient to establish the dates upon which said notice letters were actually mailed. As such Allstate s Denial of Claim , dated September 1 2011 , was late. Accordingly, defendant's cross- motion for summary judgment is denied As defendant has also failed to raise any triable issues of fact suffcient to defeat plaintiff's prima facie showing of entitlement to summary judgment , plaintiff's motion for summary judgment is granted. Submit judgment in the amount of $18 574. , 2012 interest and attorneys fees pursuant to 11 NYCRR Dated: February 7 , plus statutory 65- 6(e), on notice. r" k, . k "I .I "" \"'w Anthony L. PargaJ J.S. c. I ENTERED fEB 10 2012 MAIIAU COUNTY CLFRK OFFtCE COUM"V [* 5] Cc: Law Offices of Joseph Henig, P. Attn: Joseph Henig, Esq. 1598 Bellmore Avenue O. Box 1144 Bellmore , NY 11710 McDonnell & AdeIs , PLLC Attn: Linda A Mule , Esq. 401 Franklin Avenue , 2 Floor Garden City, NY 11530

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