Capio Med., P.C. v Progressive Cas. Ins. Co.

[*1] Capio Med., P.C. v Progressive Cas. Ins. Co. 2005 NYSlipOp 50526(U) Decided on April 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-877 K C

Capio Medical, P.C., as Assignee of ELENA BERGER and ELENA BERGER, Respondent,

against

Progressive Casualty Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (R. Garson, J.), entered on April 2, 2004, which granted plaintiff's motion for summary judgment in the sum of $1,684.12.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). Contrary to defendant's contention, its denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, these respective claims (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Moreover, the lack of authentication of an [*2]assignor's signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant's failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms constitutes a waiver of any defenses with respect thereto (see id.; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna [*3]
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]).

In opposition to plaintiff's contention that the defendant's denial was untimely, the defendant argues that its 30-day period was extended by its verification requests for examinations under oath (EUOs.) The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs "as may reasonably be required" (11 NYCRR 65-1.1 [d]). With regard to claims submitted on or after April 5, 2002, an insurer's request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules (see 11 NYCRR 65-3.5 [b], [e]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Additionally, "[c]onsistent with the Insurance Department's interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect" (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d
130[A], 2004 NY Slip Op 50693[U], supra; see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that plaintiff's claims were submitted subsequent to April 5, 2002. However, defendant's submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see 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]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant's requests for EUOs cannot operate to toll the 30-day period. Even assuming the existence of an insurance policy containing the revised endorsement, defendant has nonetheless failed to establish by competent evidence that its EUO verification requests were timely so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). The purported EUO notices dated July 1, 2002, for which there was no admissible proof of mailing, do not, in any event, constitute proper notice of EUOs, as they merely indicate a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, defendant failed to establish a timely denial of the claim and it is thus precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of non-conformity with the Workers' Compensation schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). [*4]
Decision Date: April 13, 2005