A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. 2005 NY Slip Op 50076(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: January 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-420 K C

A.B. MEDICAL SERVICES PLLC, D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. SOMUN ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. S & M SUPPLY INC. a/a/o Larisa Pyatigorskaya, Appellants,

against

PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered on January 7, 2004, as denied the motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Square Synagogue Transportation Inc. and S & M Supply Inc. for summary judgment, and which denied the motion by plaintiffs Daniel Kim's Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment with leave to renew.

Order insofar as appealed from unanimously modified by striking the provision granting plaintiffs Daniel Kim's Acupuncture P.C. and Somun Acupuncture P.C. leave to renew their motion for summary judgment; as so modified, affirmed without costs.

A plaintiff health care provider establishes a prima facie entitlement to no-fault benefits by proof that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). An [*2]insurer's failure to timely pay or deny the claim within the 30-day statutory period precludes it from asserting most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, contrary to defendant's contention, and the apparent determination of the court below, a timely denial does not relieve an insurer opposing a motion for summary judgment from the necessity of submitting proof in admissible form to rebut a plaintiffs' prima facie case (see e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

The court denied plaintiffs' motion for summary judgment on the ground that issues of fact exist with regard to the validity of the assignments. To the extent that the court's decision may have been based on the lack of proof authenticating the signature of plaintiffs' assignor on the assignment forms, it is erroneous. The lack of authentication of the assignor's signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. PLLC. v Nationwide Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24506[U] [App Term, 2d & 11th Jud Dists]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant's failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

We note that the revised insurance regulations, applicable to claims submitted on or after April 5, 2002, "no longer permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses) (11 NYCRR 65-3.11 [a]; Insurance Law § 5102 [a] [1])" (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871 [2003]). Accordingly, while "[s]uch reasonable and necessary expenses remain reimbursable (see Insurance Law § 5102 [a] [3] . . . [they are] nonassignable" (id). The record herein indicates that plaintiff Square Synagogue Transportation Inc. submitted its transportation costs prior to the effective date of the revised regulations.

Despite its untimely denial of certain of plaintiffs' claims, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195,
201 [1997]). The affidavit submitted by defendant's litigation coordinator, and the accompanying examinations under oath, were sufficient to demonstrate that defendant's denial was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs' motion for summary judgment was properly denied and renewal thereof would be unwarranted.
Decision Date: January 27, 2005