Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co.

[*1] Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. 2005 NY Slip Op 50254(U) Decided on March 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-524 K C

Contemp. Med. Diag. & Treatment, P.C., Assignee of TERESA BOONE AND ELIZABETH VILLAFANE, Respondent,

against

Government Employees Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (A. Schack, J.), entered November 24, 2003, which granted plaintiff's motion for summary judgment and denied defendant's cross motion to dismiss, deemed an appeal from the judgment of the same court entered pursuant thereto on February 10, 2004, awarding plaintiff the principal sum of $3,268.85, plus statutory interest and attorney's fees (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, it moved for summary judgment on the ground that defendant had failed to pay or deny its claims within 30 days of their receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). Plaintiff further alleged that defendant had failed to extend the statutory time period by issuing a timely verification request on the prescribed forms. A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, 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]; see also 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]). The burden then shifted to defendant to show the existence of a triable issue of fact (see [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant opposed plaintiff's motion and cross-moved for summary judgment on the ground that it had sent timely letter requests for verification, which tolled the commencement of the 30-day period within which it was obligated to pay or deny the claim. The motion court found in favor of plaintiff, finding that defendant's verification requests were not made on the prescribed forms, and therefore did not operate to toll the 30-day period.

We disagree with the lower court's determination that a request for additional verification may not be made by letter and must be made on a prescribed form (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent's Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]; see also S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]). However, we affirm the order, albeit for reasons other than those stated by the court below, on constraint of Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374 [2001]). The record on appeal in that case establishes that defendant insurer's employee averred in his affidavit in opposition to plaintiff's motion for summary judgment that "in the regular course of business at Nationwide, denial letters that are sent to the provider . . . are sent by regular mail on the day that the letter is dated." Noting that the employee had no personal knowledge that the denial of claim form had been mailed on the date it was issued, the Appellate Division, Second Department, also found that the allegation regarding defendant's office practices was conclusory and
insufficient to establish that the office followed practices which were geared to ensure the likelihood that denial of claim forms were always properly addressed and mailed on the date issued. Similarly, in the case at bar, the assertion of defendant's no-fault claims examiner that it was "the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated" was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant's opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the
30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra). [*3]Accordingly, plaintiff was entitled to summary judgment.
Decision Date: March 02, 2005