NYU-Hosp. for Joint Diseases v Unitrin Direct Prop. & Cas. Co.

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NYU-Hosp. for Joint Diseases v Unitrin Direct Prop. & Cas. Co. 2012 NY Slip Op 30421(U) February 8, 2012 Supreme Court, Nassau County Docket Number: 12441/11 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 SUPREME COURT- NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE NYU- HOSPITAL FOR JOINT DISEASES , a/a/o RONALD KEURIAN; WESTCHESTER MEDICAL CENTER , a/a/o IMELDA PORTUGAL; WHITE PLAINS HOSPITAL CENTER , a/a/o JOHN F. BRETT PART 6 INDE)( NO. 12441111 MOTION DATE: 12/22/11 SEQUENCE NO. 001 , 002 Plaintiftt s), -against- UNITRIN DIRECT PROPERTY & CASUALTY COMPANY Defendant(s). Notice of Motion , Affs. & Exs..................... ................................ .................... .... ......... Notice of Cross- Motion , Affs & Exs"""''''''''''''''''''''''''''''''''''''''''............................... Affinnation in Reply & Exs..... """"'"'''' Plaintiffs motion for summary judgment on its second and third causes of action (only), pursuant to CPLR 3212 , is granted , and defendant's cross-motion for summary judgment pursuant to CPLR 3212 , 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 pmiy No Fault benefits. The actions were commenced by plaintiff , NYU- Hosptial for Joint Diseases , as assignee of Ronald Keurian , Westchester Medical Center , as assignee ofImelda Portugal , and White Plains Hospital Center , as assignee of John Brett , in three separate causes of action arising from three separate motor vehicle accidents. Plaintiffs moved for summary judgment on all three causes of action cross-moves for summary judgment. , and the defendant [* 2] With respect to plaintiff s first cause of action involving the claim on behalf of Ronald Keurian , plaintiff contends that on July 7 , 2011 , plaintiff billed the defendant with a Form NF- for payment of a hospital bill in the sum of$1 0,467. 80. 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 July 11 , 2011. In support of its motion , plaintiff submits a copy of the certified mail and return receipts and an affidavit by Steven Attias , who is employed by Hospital Receivable Systems , Inc. as a Biller and Account Representative for the NYU- Hopsital for Joint Diseases. Mr. Attias attests that on July 7 2011 , he mailed the hospital facility form (NF- 5 Form), for payment of the sum of $1 0 467. , to the defendant by certified mail. He further attests that the postal service returned the delivery receipt for same , which was signed for by a representative of the defendant on July 11 , 20 II. failed to payor issue a timely Denial of Claim f Plaintiff contends that the defendant m. Accordingly, plaintiff contends that it is entitled to summary judgment on its first cause of action. With respect to plaintiffs second cause of action involving the claim on behalf of Imelda Portugal , plaintiff contends that on July 5 , 201 1 , plaintiff biled the defendant with a Form NF- for payment of a hospital bill in the sum of $12, 922.45. A form UB- Report were attached to the bill. The bill was mailed certified mail 04 and DRG Master Output , return receipt requested , and was received by the defendant on July 7 , 2011. In support of its motion of the certified mail and return receipts and an affidavit by Peter Kattis , plaintiff submits a copy , who is employed by Hospital Receivable Systems , Inc. as a Billing Supervisor and Account Representative for the Westchester Medial Center. Mr. Kattis attests that on July 5 form (NF- 5 , 2011 , he mailed the hospital facility Form), for payment of the sum 01'$12 922.45 , to the defendant by certified mail. I-Ie furher attests that the postal service returned the delivery receipt for same by a representative of the defendant , and that the " delivery on July 7 , , which was signed fCJr Track and Confirm " from the USPS confirmed 2011. Plaintiff contends that the defendant failed to payor issue a timely Denial of Claim form. Accordingly, plaintiff contends that it is entitled to summary judgment its second cause of action. With respect to plaintiffs cause of action involving the claim on behalf of JohnF. Brett , plaintiff contends that on June 17 2011 , plaintiff biled the defendant with a Form NFthird [* 3] for payment of a hospital bill in the sum of $4 , 195. 60. A form UB- The bil was mailed certified mail , return receipt requested June 21 , 04 was attached to the bill. , and was received by the defendant on 2011. In support of its motion , plaintiff submits a copy of the certified mail and return receipts and an affidavit by Steven Attias , who is employed by Hospital Receivable Systems, Inc. as a Biller and Account Representative for White Plains Hospital Center. Mr. Attias attests that on June 17 195. 2011 , he mailed the hospital facility form (NF- 5 Form), for payment of the sum of , to the defendant by certified mail. He further attests that the postal service returned the delivery receipt for same , which was signed for by a representative of the defendant on June 2011. Plaintiff contends that the defendant tailed to payor issue a timely Denial of Claim fonn. Accordingly, plaintiff contends that it is cntitled to summary judgment on its third cause of action. The plaintiff has made a prima tacie showing of entitlement to summary judgmcnt by submitting evidentiary proof that the prescribcd statutory billing forms were mailed and received and that payment of no- fault benefits is overdue. (Insurance Law 5106(a); 11 NYCRR Mary Immaculate Hosp. v. Allstae Ins. Co. 5 A. 3d 742 , 774 N. YS. 2d 564 (2d Dept. 2004); Alvarez v. Pro.\pect Hospital 68 N. Y. 2d 320 , 508 N. Y.S. 2d 923 (1986)). An insurer is required to either payor deny a claim for medical services rendered under No65.15(g)(3); Fault within 30 days from receipt of proof of the claim (e. , the bill), which proof shall incl ude verification requested by the insurer pursuant to 11 NYCRR 65- 5. (See , 11 NYCRR 65- 8(a); Insurance Law 95106(a)). Once the movant has demonstrated a prima facie showing of entitlement to judgment , the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form suffcient to establish the existence of material issues of a fact which require a trial of the action. Defendant opposes (Zuckerman v. City of New York 49 N. Y2d 557 (1980)). plaintiffs motion and cross-moves for a severance of the causes of action brought by each of the three plaintitfs and for summary judgment. To begin , with respect to the severance of the causes of action , joinder of the claims herein is proper under CPLR 1002(a) since the claims arise out of a uniform contract of insurance and involve the interpretation of the same no- (Hempstead Gen. Hosp. v. Liberty Mut. Ins. Co. fault provisions of the Insurance Law. 134 A.D. 2d 569 , 521 N. Y.S. 2d 469 (2d Dept. [* 4] 1987)). Accordingly, said request is denied. Next , defendant contends that plaintiff's motion should be denied because it is premature as there has been no discovery. Defendant contends that the plaintiffs are in possession of information necessary for the defendant to properly defend this action. The defendant thcrc was it is in the process of obtaining information to prove its defense of improper party, that argues that no policy in effect , and that the dciendant never received the bilIs in dispute. The Court notes however, that the information which defendant contends it is seeking, is information which would be in the possession of the defendant , not of the plaintiff Defendant further contends that plaintiff served the wrong party defcndantin its claim for reimbursement of no fault benefits. PlaintitT submitted the bilIs to Unitrin Direct PrOpCJ1y & Casualty Company, but defendant contends that a review of the claim numbers shows that Ihis is an improper party. Defendant argues that the proper insurance company for Ronald Keurian is Kemper Independence Insurance Company. Delendant contends that the remaining claimants may be insured by the defendant or by Unitrin Direct Insurance. Therefore that the named defendant does not have a policy in effect for said assigoo , defendant contends and is not for the bills. Additionally, defendant contends that it never received the bills at issue responsible , which were sent to a post offce box. Defendant further argues that the plaintiff did not submit proper proof of mailing by its affidavits and that its proof is also insuffcient to show who the proper insurers of the claimants are. In support of its contentions , defendant submits an affdavit claims representative employed by Merastar Insurance Company.of Karen Copp, aMerastar She attests that no- fault Insurance Company (" Merastar ) is her employer and she works for its business segmenl called Kemper Preferred. Ms. Copp attests that the claims Ilandlers ofMerasta adjust claims lor several subsidiary underwriting companies through Kemper PrefeJTed Advantage Insurance Company (" Insurance Company (" , including Unitrin Unitrin ) and " the proper insurer " Kemper Independence Kemper ). Ms. Copp attests that Kemper Independence Insurance Co. is the insurer which issued the policy of insurance to claimant Ronald Keurian. Ms. Copp further attests that her search revealed that the subject bills for claimants Imelda Portugal and John F. Brett wer never received by the defendant , therefore payment Was [* 5] neither denied nor issued. The Court notes , however, that Ms. Copp does not attest that the address to which the bils were sent is not the proper address for the defendant. With respect to plaintiff s second and third causes of action , defendant has failed to set fort any evidence in admissible form suffcient to defeat plaintiffs prima facie entitlement to summary judgment. Ms. Copp showing of s at1davit , in which she states only that the defendant did not receive the subject bills or claim " is insufficient to create a question of fact where the plaintiff has established proof of mai I ing to the defendant' s proper address and receipt by the defendant. Defendant fails to submit any afIidavit from Unitrin Direct Property & Casualty Company, either by an underwriter or claims representative , attesting that defendant did not insurer assignors Portugal and Brett. It is well settled that a party opposing a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a genuine triable issue of fact. (Morgan v. New York Telephone 220 AD.2d 728 , 633 N. 319 (2d Dcpt. 1995)). The defendant has also failed to demonstrate that the informationY.S. needed to oppose the within motion is solely within the plaintiffs possession. It is wel1 settled that the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered" by fUl1her discovery is an insufficient basis for denying the motion. (Woodard Thomas 77 AD. 3d 738 , 913 N. Y.S.2d 103 (2d Dept. 2010); Simpson v. New York City Transit Authority, 44 AD. 3d 930 , 844 N. 2d 108 (2d Dept. 2007); AD.2d 457 719 N. Y.S. 2d 99 (2d Dept. 2001); Ligh(foot v. Ci y qfNew York 279 Lopez v. WS Distribution , Inc. 34 825 N. Y.S.2d 516 (2d Dept. 2006)). Accordingly, plaintiff's motion for summary A.D. 3d 759 judgment on its second and third causes of action is granted. Plaintiff shall submit judgment on notice for the amounts demanded in the second and third causes of action in its complaint , plus statutory interest and attorneys fees pursuant to 11 NYCRR 965- 6(e). With respect to plaintiff's motion for summary judgment upon its first cause of action involving the claim on behalf of Ronald Keurian , the affidavit of Ms. Copp is suffcient to create a question of fact to warrant the denial of plaintiff' s motion , but is insuffcient to establish a prima facie showing of entitlement to summary judgment on behalf of the defendant. Ms. Copp attests affirmatively that Ronald Keurian was covered by a policy of insurance issued by Kemper and not by the defendant. The Court notes , however , that the policy of insurance submitted by \)' , : .. .. ,, [* 6] ". " ' the defendant is not in admissible form. As such , plaintiff's motion for summary judgment on its first cause of action is denied. With respect to summary judgment , issue finding, rather than issue determination , is the court' s function. (Celardo v. Bell 222 A. 2d 547 , 635 N. Y.S. 2d 85 (2d Dept. 1995); Museums at Stony Brook v. Vilage of Patchogue Fire Dept. 146 A.D. 2d 572 536 N. Y.S.2d 177 (2d Dept. 1989)). Plaintiff is directed to serve a copy of this order upon the Differentiated Case Management Part (" DCM" ) Case Coordinator of the Nassau County Supreme Court , and upon counsel for the defendant , within twenty (20) days of the date of this Order. The parties shall appear for a Preliminary Conference on March 28 2012 at 9:30 A. M. in the DCM Part , County Supreme Court , to schedule all discovery proceedings related to the first cause of Nassau action in this matter. Dated: February 8 , 2012 , c Ji \YVv \ f' Anthony L. Pargck, Cc: Law Offces of Joseph Henig, P. Attn: Gregory Henig, Esq. 1598 BeJImore Avenue O. Box 1144 BeJImore , NY 11 71 0 J.S. c.! ' ENTERED FEB 1 0 2012 GuJIo & Associates , LLC Attn: Cristina CaroJIo 520 86 Street Brooklyn , NY 11209 MASSAU COUNTY S OFFtCE COUNTY CLERK'

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