Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co.
Annotate this CaseDecided on May 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: May 19, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT :PESCE, P.J., GOLIA and RIOS, JJ.
2004-341 K C NO.2004-341 K C
OCEAN DIAGNOSTIC IMAGING P.C. a/a/o Allen Seraphin Gavner Eustache Devine Ocasio, Appellant,
against
LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Battaglia, J.), entered December 3, 2003, as denied its motion for summary judgment.
Order insofar as appealed from reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.
In this action to recover $5,341.86 in first-party no-fault benefits for medical treatment provided its assignors, plaintiff established its entitlement to summary judgment prima facie by proof that it submitted statutory claim forms, setting forth the fact and amount of the loss sustained, and that payments of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant timely denied the claims on the sole ground that the assignors failed to attend independent medical examinations (IMEs).
In opposition to plaintiff's motion, defendant failed to establish by competent evidence that it mailed the IME requests to assignors. The affirmation of defense counsel did not establish his personal knowledge of the relevant facts in that the alleged letters did not issue from counsel [*2]or his office and the affidavit of defendant's "claims specialist" made no reference to the IME demand letters or their mailing. Thus, the purported proof of the IME demand letters amounted to unsubstantiated hearsay (Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). Moreover, defendant's papers failed to set forth in admissible form such facts as would create the presumption of mailing (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]; A.B. Med. Servs. PLLC v USAA Cas. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). As defendant failed to prove that the assignors were properly notified of the scheduled IMEs, defendant's motion papers failed to establish a defense.
In any event, even had the proof of mailing sufficed to establish a triable issue of assignors' non-cooperation with defendant's verification requests (defendant acknowledged that assignor Seraphin attended one of his four scheduled IMEs), defendant's failure to exhaust the follow-up verification requirements rendered the claim denials without merit as a matter of law (see 11 NYCRR 65-3.6 [b]; 11 NYCRR 65-3.5 [d]). While an insurer need not pay or deny a claim until all requested verification is received (11 NYCRR 65-3.8 [b] [3]), the insurance regulations impose on the insurer, when an initial verification request is not honored within 30 days, the duty to follow up with a second request within 15 days (11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). By failing to "follow up," defendant abandoned its request for verification and therefore may not, as a matter of law, use the failure to provide verification, here an IME, as a basis to deny the claim (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Thus, the denial form was 'ineffective to avoid preclusion" (Amaze Med.
Supply v Eagle Ins. Co., 3 Misc 3d at 44; see Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d at 664).
Accordingly, plaintiff is granted summary judgment and the matter remanded to the court below for a calculation of the statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 2005
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