Struhl v Progressive Cas. Ins. Co.

[*1] Struhl v Progressive Cas. Ins. Co. 2005 NYSlipOp 50864(U) Decided on June 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: June 3, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-1038 N C

DR. Steven Struhl, M.D., As assignee of CHRISTOPHER DENT, Respondent,

against

Progressive Casualty Insurance Company, Appellant.

Appeal by defendant from an order of the District Court, Nassau County (S. Jaeger, J.), entered February 9, 2004, which granted plaintiff's motion for summary judgment.

Order unanimously reversed without costs and plaintiff's motion for summary judgment denied.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider established its prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of a statutory claim form setting forth the fact and 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]). The nature of the fact and amount of loss, that is, the "particulars of the nature and extent of the injuries and treatment received and contemplated" (11 NYCRR 65-1.1) were sufficiently set forth to permit defendant the review to which it was entitled at the claim stage. Thus, the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Absent tolling of the statutory time, defendant's conceded failure to deny the claim within 30 days of its receipt precluded its defenses with the exception noted below (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v [*2]Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). First, defendant sought to prove requests for verification via the affidavit of a "litigation specialist" who asserted no basis of personal knowledge of the facts aside from defendant's records and who offered no proof of mailing (e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Moreover, the alleged initial and follow-up verification demands, in any event, were ineffective to toll the claim determination period. All post-claim verification requests must be made within prescribed time frames, (11 NYCRR 65-3.5 [a], [b]; 65-3.6 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). Defendant omitted any proof of its allegedly timely initial verification request and its purported proof of a subsequent, follow-up request, however marked a "second notice," was therefore of no significance. Defendant's failure to establish compliance with the verification rules justified the court's conclusion that the 30-day claim determination period expired.

Whatever the merits of defense counsel's calculations of the proper fee schedule, the issue is precluded by the untimely denial (see Westchester Med. Ctr. v American Tr. Ins. Co., ___ AD3d ___, 2005 NY Slip Op 03046; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture 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]). Also precluded are defendant's challenge to the treatment's medical necessity, however well-established by a peer review report in admissible form (e.g. A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]), and the alleged defects in the proof of assignment (New
York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra).

However, the preclusion sanction does not apply to a defense that a claim is based on treatment for medical conditions unrelated to a covered traffic incident (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and upon our review of the peer review report, submitted below in admissible form, we are persuaded that the report sufficed to create a triable issue as to whether the condition for which the herein medical services were provided arose from a covered insured incident (id.; see also Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra).
Decision Date: June 03, 2005