A.B. Med. Servs. PLLC v Country-Wide Ins. Co.

[*1] A.B. Med. Servs. PLLC v Country-Wide Ins. Co. 2005 NY Slip Op 50255(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 This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and RIOS, JJ.
2004-531 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. a/a/o James Gresseau, Paultre Desir, Appellants,

against

Country-Wide Insurance Company, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered March 30, 2004, as denied their motion for summary judgment.

Order unanimously modified by providing that plaintiffs' motion for summary judgment is granted to the extent of awarding plaintiff A. B. Medical Services PLLC partial summary judgment in the sum of $14,602.46 on 29 claims, plaintiff D.A.V. Chiropractic P.C. partial summary judgment in the sum of $2,232.58 on 14 claims, and plaintiff Lvov Acupuncture P.C. partial summary judgment in the sum of $6,016.12 on 12 claims, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon, and for all further proceedings on the remaining three claims; as so modified, affirmed without costs.

Plaintiff health care providers commenced this action to recover first-party no-fault benefits for medical services rendered to their assignors for injuries allegedly sustained in a motor vehicle accident, and thereafter moved for summary judgment in the sum of $23,214, which was comprised of $14,727.90 in claims (consisting of 30 bills) for A.B. Medical Services PLLC, $2,299 in claims (consisting of 15 bills) for D.A.V. Chiropractic P.C., and $6,186.12 in [*2]claims (consisting of 13 bills) for Lvov Acupuncture P.C. Upon a review of the record, we find that with the exception of three of the 58 claims, plaintiffs established a prima facie entitlement to summary judgment by showing that they submitted claims 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]). Inasmuch as defendant failed to pay or properly deny 55 of the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Although the 30-day period may be extended by a timely request for verification, a letter which merely informs a claimant that a decision on the claim is delayed pending an investigation, and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period (see Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; see also Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as the letters sent by defendant in the instant case were not requests for verification, they did not operate to toll the 30-day period.

Insofar as the claim denials were based upon "multiple fraud indicators," defendant neither interposed a defense of fraud in its answer, nor provided in its papers in opposition to plaintiff's summary judgment motion any support for its allegations of fraud. Moreover, to the extent that some of the claim denials which were timely were based upon lack of medical necessity, they were not supported by a sufficiently detailed factual basis and medical rationale (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the absence of any such support, said defense was waived. Accordingly, with the exception of the three claims set forth below, plaintiffs were entitled to summary judgment.

With respect to the A.B. Medical Services PLLC claim form dated March 4, 2003 for $125.44 for services rendered on February 3, 2003 and February 27, 2003, the D.A.V. Chiropractic P.C. claim form dated March 3, 2003 for $67.40 for services rendered on February 3, 2003 and February 27, 2003, and the Lvov Acupuncture P.C. claim form dated March 5, 2003 for $170 for services rendered on February 3, 2003 and February 27, 2003, summary judgment was properly denied. Plaintiffs did not allege the date that defendant received those claim forms, and failed to submit proof that defendant's requests for verification and follow-up requests for the "applicant's completed NF-2" and a "complete narrative report" were complied with. Assuming the verification requests by defendant insurer were timely submitted, it had no obligation to act on the claims until it received the requested verification (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). Absent proof of compliance with the verification requests, plaintiffs cannot be said to have made out a prima facie case upon the instant motion with respect to those three claims (see Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on the aggregate sum of $22,851.16, that portion [*3]of the claims for which summary judgment is granted, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining three claims.
Decision Date: March 02, 2005