GBI Acupuncture, P.C. v Esurance Ins. Co.

[*1] GBI Acupuncture, P.C. v Esurance Ins. Co. 2012 NY Slip Op 52423(U) Decided on December 26, 2012 Civil Court Of The City Of New York, Kings County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 26, 2012
Civil Court of the City of New York, Kings County

GBI Acupuncture, P.C. and LIBERTY CHIROPRACTIC P.C., a/a/o LORRAINE CAMPBELL, Plaintiff,

against

Esurance Insurance Company, Defendant.



126179/09



Attorneys for Plaintiff GBI Acupuncture, P.C. and Liberty Chiropractic P.C.

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorneys for Defendant Esurance Ins. Co.

Law Offices of Michael G. Nashak

15 Metrotech Center, Floor 19

Brooklyn, NY 11201

Harriet L. Thompson, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on3/27/12,

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ..................................... ..1-2, 3

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits ..___4_______

Replying Affidavits ._____________

Exhibits _____________

Other .........................................................._____________

This action was commenced in or about December 3, 2009 by the service of a Summons and Complaint to recover first-party No-Fault benefits as a result of alleged injuries arising out of an [*2]alleged automobile accident which occurred on May 12, 2009. In or about March 11, 2010, the Defendant interposed a Verified Answer by its attorney which contained various affirmative defenses to the underlying complaint.

PROCEDURAL HISTORY

The Defendant, by Notice of Motion, moves this Court pursuant to CPLR§3212 for summary judgment dismissing the complaint. The Defendant contends that the complaint lacks merit because the Assignor, after service of timely and proper notices of four independent requests for examinations under oath (hereinafter referred to as "EUO"), at four different addresses to the assignor and two notices to her attorney, she and her attorney failed to appear. The Defendant proffers three supporting affidavits; to wit: ERIN SCHABE, the Claim Representative who attests to the receipt of the medical bills from the assignee, and the timely mailing of the denials based on the aforementioned breach of the insurance policy; JASON FORTIER as Claims Manager who attests to the mailing practices and procedures of the Defendant and assures this court that the proper procedures were employed by the Defendant to assure that the denials were timely and properly mailed in accordance with said practices and procedures, and were not returned to the Defendant as undeliverable; MICHAEL G. NASHAK, ESQ., the Managing Attorney for the Brooklyn Staff Counsel Office that attests to the proper business practices and procedures employed by his office in mailing, scheduling and conducting EUO's in the ordinary course of business of his law office; MERCEDES ROMERO, his assistant clerk that attests to drafting and scheduling the EUO notices and having them signed by the aforesaid managing attorney, the mailing the EUO notices by regular mail or certified mail, return receipt requested, "where indicated", confirming the EUO appearances, awaiting the arrival of the claimant and notifying the Managing Attorney and the Defendant of the appearance or nonappearance of the claimant at the EUO. The Defendant asserts that the failure of the Plaintiff to provide additional verification by the failure to appear for an EUO is a breach of an express condition precedent of the insurance policy and state regulations, and accordingly, the Plaintiff is not entitled to payment of No-Fault benefits under the policy. Consequently, the Defendant claims that there are no triable issues of fact and judgment should be granted in its favor.

In opposition to the Defendant's motion, the Plaintiff attacks the sufficiency of the affidavit of each of the above named individuals, namely the lack of specificity of the time of mailing in ERIN SCHABE'S affidavit; the defective affirmation of MICHAEL G. NASHAK, ESQ., which excludes the state and county on the affirmation and lack of a legally sufficient caption of this case and argues that the affirmation neglects to specify that he was present in the office on the date of the alleged nonappearance by the assignor; the affidavit of MERCEDES ROMERO that lacks the proper index number for the case, proper legal caption and the name of the court. In addition, Plaintiff contends that MERCEDES ROMERO cannot attest to the nonappearance of the assignor on August 19, 2010 and September 10, 2009 because she did not work at that scheduled location. Further, the Plaintiff claims that the Defendant neglected to annex a letter dated August 19, 2009 to prove the proper number of EUO requests mandated by case authority and the insurance regulations to prove noncompliance with the insurance policy; the affidavit of MERCEDES ROMERO and MICHAEL G. NASHAK, ESQ., do not contain any certificate of mailing as alleged in their affidavits and thus, lack credibility; the EUO letters do not comport with the insurance regulations insomuch that the 3rd [*3]EUO letter and 4th EUO letter are only twelve (12) days apart; and the Defendant failed to establish that the EUO letters dated July 29, 2009 and September 4, 2009 were sent to the assignor and to her attorney.

The Plaintiff, by Notice of Cross Motion, moves this Court pursuant to CPLR §3212 for summary judgment asserting that the Plaintiff timely and properly mailed the prescribed bills and assignment of benefit form for No-Fault benefits; the Defendant received the bills and assignment of benefits form; the Defendant did not timely deny the bills; and the bills remain unpaid and are overdue. The Plaintiff presents the affidavit of YAKOV SIMKHAEV, the Supervisor of Billing for both assignors, that attests to the office practices and procedures for generating and mailing of their No-Fault claims and verification, and receipt of the denials. She describes the business practice and procedures of the office of the Plaintiff from the initial office visit of the claimant to the creation of the medical bills generated in the ordinary course of business. She states that she personally mailed the bills by first class mail with a certificate of mailing; and affirms that payment is overdue on the bills.

FINDING OF FACTS AND CONCLUSION OF LAW

This court is cognizant of the reality that many lawyers invariably seize every opportunity to assert the right to victory by summary judgment based on "technical" or "procedural" irregularities in the pleadings. More often than not, these claims are often obscure and insignificant to the ultimate outcome of the litigation.

Having this prospective in mind, lets look to the law, specifically, CPLR §104 that states that the Civil Practice Law and Rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding. This section of the law was intended to liberalize court procedures and do away with unnecessary and burdensome motion practice. The courts in this state, where at one time, "formal precision was the sovereign talisman..." have long ago held that "the rule of strict construction of statutes in derogation of the common law principles [are] inapplicable". Schneider v. Schneider, 17 NY2d 123, 127, 269 NYS2d 107, 216 NE2d 318, 320 (1966). One of the few areas that the courts continue to enforce procedural conservatism is with provisional remedies. Valentine Dolls, Inc. v. McMillan, 25 Misc 2d 551, 202 NYS2d 620 (1960).

With the same principles at the forefront, careful attention should also be given to a companion provision of the CPLR, namely, Section 2001 which maintains that "at any stage of an action the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just. This section is supportive of the policy in this state that just determination shall be based on matters of substance, not form and to the ultimate end of justice, that slight mistakes or irregularities shall not invalidate legal proceedings.

As significant, there are other related provisions in the CPLR that should also be reviewed to this end. CPLR 5512(a) and 5520 make express provision for similar relief in connection with omissions or defects in taking appeals. Looking to CPLR §3026 which expressly mandates that pleadings shall be liberally construed and that defects in pleadings shall be ignored if a substantial right of a party is not prejudiced. The reader is urged to generally review the Practice Commentaries in the CPLR under these respective statutory provisions; also see Siegel, New York Practice §6, et [*4]seq. (2nd ed.)

These statutes are routinely enforced by our courts and more recently, the Appellate Division, Second Department, reaffirmed the underlying policy of the judiciary in an election law case where the court found that the Supreme Court properly amended the caption to designate an individual, who was originally denominated as the respondent to the petitioner on the grounds that the "defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice; see also MacKay v. Johnson, 54 AD3d 428, 863 NYS2d 85 [2008]; and Hoot Croup, Inc. v. Caplan, 9 AD3d 448, 779 NYS2d 922 [2004] finding in a case where the plaintiff properly commenced the action in the Supreme Court, Dutchess County and the summons and complaint incorrectly bore a "County Court, Dutchess County" caption, that this ministerial error provided no basis for disturbing a money judgment granted for plaintiff by way of summary judgment. "Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice" (First Wis. Trust Co. v Hakimian, 237 AD2d 249 [1997]; see CPLR 104, 2001, 2101 [f]; 3025 [c]; 3026). In that case, the defendant failed to demonstrate that he incurred any prejudice as a result of the incorrect caption on the summons and complaint. Indeed, he timely answered the complaint and opposed the motion for summary judgment.

Additionally, the court has evaluated the case of Maximum Physical Therapy, P.C. v. Allstate Ins. Co., 8 Misc 3d 1021(A), 803 NYS2d 19 [NY Civ. Ct., 2005) relied upon by the Plaintiff to declare the above named affidavits a nullity and finds the Plaintiff's claim without merit. This case stands for the proposition that the affirmation of an attorney without personal knowledge has no probative value and can not expressly raise a triable issue of fact to defeat a motion for summary judgment. In that case, the court found that the affidavit of plaintiff's corporate officer was also insufficient since "the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan's affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan's affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005])."

The court specifically left the technical defects in the affidavit last for consideration. For our purposes here, these irregularities were dictum and not the law of the case. The Court opined that the affidavit of the corporation officer is "defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that was separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Practice § 205 at 324 [3d ed]). An affidavit should ordinarily [*5]begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., "John Smith, being duly sworn, deposes and says"). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff's Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)]."

In this case, the affirmation of MICHEAL G. NASHAK, ESQ. and MERCEDES ROMERO do contain a caption of the case, albeit, irregular and does not contain the typical formal recitation of the caption. The irregularities in both sworn statements do not render them inadmissible for the purposes of this motion. It is the opinion of this court that although the Judge Lane in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, offered instructive criticism of the procedural abnormalities in Defendant's papers, his decision did not rely on those procedural irregularities to deny the Plaintiff motion but instead the substantive content of the papers. This pragmatic jurist shall not elevate form over substance; such defects like in the instant case, are of such an inconsequential nature that the CPLR, specifically, §3026 gives broad discretion to this court to ignore them particularly since the Plaintiff has not offered any rationale indicative of prejudice in any manner or form. Accordingly, this court shall ignore these minor procedural infractions and not even offer to amend them for they bears no harmful consequences . As the practice commentaries urge all practioners, the liberal construction of all papers in a court action is intended to discourage useless pleading attacks by placing the burden on the attacker to show prejudice as well as failure of compliance. See, Connors, Practice Commentaries, McKinney's Cons. Laws of NY, CPLR 3026:4-6.

Continuing on to the substantive elements of the respective supporting affidavits beginning with ERIN SCHABE, the Claim Representative, this court finds sufficient the detailed explanation based on her personal knowledge and job responsibilities of the business practices and procedures implemented by her office on receipt of a bill for medical services by the Defendant. She is the employee that puts the denials in the envelopes and puts the mail in the proper receptacles in the office for pick up by the Post Office, and attests that the mail (denials or verification) to this specific provider were not returned.

The affidavit of JASON FORTIER employed at the Defendant's office since 2006, bridges any alleged gaps in the mailroom procedures for the insertion of the denial or verification in the envelope by the Claims Representative and/or Adjuster to its travel from that individual's desk though the office to the mailroom. As the supervisor of the mailroom, this court is persuaded that he has knowledge of the practices and procedures of that department and sufficiently describes the process including the method, time and date that the mail is picked up by the Post Office employees for delivery to the actual Post Office daily. Unlike the affidavit in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the instant affidavit states the specific sources of his knowledge (he is the supervisor of the mailroom employees) and does not contain conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). He also attests that the business practices were followed in this case and his review of the record of this case [*6]do not support any claim that it was not followed in this instance.

Contrary to the contentions by the Plaintiff, this court need not know the time that the mail was put into the receptacle; the specific time is irrelevant; what is relevant is whether the practice and procedure employed by the Defendant was consistently followed daily at around 4:00 p.m. when the mail (denials/verifications) is deposited in the custody and control of the US Post Office employee that were generated that day by the Claims Representative. Moreover, JASON FORTIER also attests that any mail that is processed after 4:00 p.m. by the Claims Representatives is mailed the following business day. So, there are specific times that the mail goes out each day and the court finds no omission or ambiguity in the mailing procedures of the Defendant.

Since the Defendant has established the method employed for the generation of the denials and the mailing procedures for their office, this Court shall address the EUO requests from the Defendant.

It has been firmly established that an insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 ( 2nd Dept., 2008); New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D3d 512 (2nd Dept., 2006). Verification extends the time for the insurer to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of the claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008). Delay letters have been confused with verification and verification is often obscure. In Ocean Diagnostic Imaging P.C. v. Citywide Auto Leasing Inc., 8 Misc 3d 138 (A), 2005 Slip Op 51314[U], the Appellate Term Second Department held that "an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period." See also the recent matter of Superior Oxygen & Othro Supplies, Ltd. v. Auto One Ins. Co., 2012 NY Slip Op 50348(U).

Unlike the affidavits in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the affirmation of MICHAEL G. NASHAK, ESQ. and affidavit of MERCEDES ROMERO are inopposite. Not only do they contain sufficient factual claims, they are also based on their personal knowledge of the facts. The sworn statements of both the attorney and the paralegal are not conclusory but describe in sufficient detail the assignment of the cases for the purposes of scheduling and conducting EUO's. The paralegal, MERCEDES ROMERO, prepares the letter on the dates of the letters, annexed as Exhibits "I", "J", "K" and "M", and has the managing attorney sign the letter(s). She places them in the envelopes and mails them either by regular mail or certified mail, return receipt requested. An examination of each letter reveals that some were sent by regular mail and others by certified mail which contain the certified mail number on the letter. Even if the letter dated August 19, 2009 is not annexed to the motion papers, the exclusion of that letter has no significance because it would be superfluous. Three EUO letters, dated June 3, 2009 (Exhibit "I"), July 30, 2009 (allegedly misdated and should be June 30, 2009) (Exhibit "J") and July 17, 2009 (Exhibit "K"), had already been mailed to the claimant at four different addresses and then two EUO letters, dated July 29, 2009 (Exhibit "L") and September 4, 2009 (Exhibit "M") were sent to her attorney by facsimile and regular mail. [*7]

The Plaintiff never rebuts by admissible evidence, the presumption of receipt of the EUO notices by any affidavit of a person with actual knowledge of the case. In fact, the Plaintiff's opposition papers contain only an affirmation from the attorney. As the Court of Appeals has firmly held an affidavit or affirmation from a party's attorney who lacks personal knowledge of the facts is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980];Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, 2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Term has consistently determined that it is insufficient to defeat a motion for summary judgment motion. (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) in which the court found that "[t]he defendant's attorney submitted an opposing affirmation, based on his knowledge which was "obtained from a reading of the files," wherein he alleged that the NF-2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995 was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant's attorney's affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v 3-9 Drugs, 277 AD2d 197, 715 NYS2d 442). Likewise, in Drug Guild Distribs. v 3-9 Drugs, supra, the Appellate Division held that "an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent" were insufficient to defeat summary judgment. "The defendant's conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff's documentary evidence". See also Park Health Center v. Green Bus Lines, Inc., (2002, WL 416484, 2002 NY Slip Op. 40029(U).

As the Defendant correctly states in the instant motion, all automobile insurance policies with No-Fault endorsements in our state contain the prescribed language of the Insurance Regulations, specifically, 11 NYCRR 65-1.1 that provides that "[u]pon request by the Company, the eligible injured person or that person's assignee or representative shall:...(b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same....." Moreover, 11 NYCRR 65-3.5 ( c) states that "[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested." Then, lastly, as correctly stated by the Defendant, 11 NYCRR-1 provides in pertinent part as follows: [n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. In applying these general statutory and policy requirements to this case without the necessity of the numerous cases that have firmly established precedent for the mandatory compliance of provides to respond to EUO requests, the court finds these additional facts.

The Defendant acknowledged receipt of the bills on the following dates: June 26, 2009 (DOS-5/19/2009-5/19/2009 and DOS 5/19/2009-6/15/2009); June 30, 2009 (DOS-5/19/2009-6/22/2009); July 30, 2009 (DOS-6/22/2009-7/15/2009); and July 30, 2009 (DOS-6/23/2009-7/15/2009). The corresponding notices for the EUO to the assignor were on June 3, 2009, June 30, 2009, July 17, 2009; and then to her attorney on July 29, 2009 and September 4, 2009. All of the EUO requests were timely as well as their responding denials. To follow the statute, the Defendant [*8]additional verification on June 3, 2009 for EUO on June 26, 2009, with the follow up request on June 26, 2009 for EUO on July 14, 2009 were sufficient. But the Defendant goes further, the third request for July 17, 2009 for EUO on July 30, 2009. The latter was adjourned by the Plaintiff's assignor's attorney so the Defendant send the fourth request dated July 29, 2009 for the EUO for August 19, 2009 and then the fifth request based on the nonappearance of counsel and his claimant, dated September 4, 2009 for EUO for September 10, 2009. A little common sense is sometimes not so common; if the attorney made a request for an adjournment, it stands to reason that his client received the EUO notice. Since he was subsequently notified twice, and he and the claimant did not appear, the Defendant offered more than ample opportunity for compliance with the policy and the law.

Lastly, the court finds that it is not fatal that the affirmation of the Defendant's attorney did not explicitly state that he was in the office on the date of the no-show for the EUO. He affirmed that the notices were properly mailed and that the assignor failed to appear. The paralegal attests the she awaited the arrival of the claimant and notified the managing attorney and the Defendant of the nonappearance of the claimant at the EUO. Notwithstanding the fact that MERCEDES ROMERO is not employed by the other office where the EUO was scheduled, namely on August 19, 2010 and September 10, 2009, the other EUO no- shows after notice to assignor and then to two additional notices to her attorney, is sufficient to establish that the assignor failed to comply with the insurance regulations and policy. It is glaring to this court that the Plaintiff assignor and her attorney did not appear for five (5) properly and timely scheduled EUO's and have not proffered even one excuse or explanation for the lack of cooperation with the insurer.

Therefore, in our case, despite the creative arguments in the opposition papers to this summary judgment motion by the attorney for the Plaintiff, they are unavailing and cannot defeat summary judgment by the Defendant. As important, the opposition papers themselves are patently defective. The opposition papers should contain separate, numbered paragraphs for each factual allegation as was noted in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, ironically relied on by the Plaintiff. These opposition papers reminds this court of the old adage "the pot cannot call the kettle black". Although this court has overlooked this procedural irregularity and addressed the most pertinent of the Plaintiff's claims, the absence of an affidavit by a person with actual knowledge does not constitute evidence in admissible form and accordingly, has failed to raise any triable issues of fact.

For all of the reasons stated above, the Plaintiff's motion for summary judgment is denied and the motion by the Defendant for summary judgment is granted in its entirety and the complaint is dismissed with prejudice.

A courtesy copy of this decision and order shall be mailed by this court to the attorneys for the respective parties.

The Defendant shall serve a copy of the Order and Decision with Notice of Entry on the Plaintiff within thirty (30) days of the date of the entry of this Order by the Clerk of the Court and shall file proof of service thereof with the Clerk of the Court.

This constitutes the Decision and Order of this court. [*9]

December 26, 2012