Medwide Med. Supply Inc. v Country-Wide Ins. Co.

[*1] Medwide Med. Supply Inc. v Country-Wide Ins. Co. 2005 NYSlipOp 51078(U) Decided on July 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-597 Q C

Medwide Medical Supply Inc., a/a/o Adriana Arias, Faina Aronova, Appellant,

against

Country-Wide Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered March 5, 2004, which denied its motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees.

In this action to recover $2,616.29 in first-party no-fault benefits for medical equipment supplied its assignors, plaintiff established its prima facie entitlement to [*2]
summary judgment by proof that it submitted statutory claim forms setting forth the fact and amount of the losses 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]; see also King's Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). We note that the affidavit of a plaintiff's "officer and billing manager" is a proper vehicle to assert the facts of a no-fault claimant's submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King's Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56, supra; Ocean Diagnostic Imaging v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51032[U] [App Term, 9th & 10th Jud Dists]).

Defendant's untimely denial of the Arias claim (for $790.45) precluded defenses to the action, with exceptions not herein relevant, and warranted summary judgment on this ground alone (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to the [*3]
remaining claims (Aranova for a total of $1,825.84), which defendant denied on the basis of unsworn nurse's "medical reviews" of the treatment files, as plaintiff properly objected below, said unsworn reviews "did not constitute competent evidence sufficient to defeat [a motion for summary judgment]" (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]; 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]). Defendant offered no acceptable excuse for its failure to proffer the reviews in admissible form in opposition to the motion for summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). In any event, the herein medical reviews, which included no statement of the reviewing nurse's training, observations or actual experience, failed to establish the competency of the reviewers' medical opinions and conclusions drawn from the facts (People v Monroe, 307 AD2d 588, 591 [2003]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]). [*4]

Finally, defendant's challenge to the propriety of the assignment of benefits form is also without merit. Defendant failed timely to seek verification of the assignment's validity or to assert facial deficiencies in the assignment form as a basis for the claims' denial and, thereby, it waived any such objections. While we are as mindful as our dissenting colleague of the integrity of the assignment process, we are constrained by the broad language adopted by the Appellate Division which unambiguously refers all issues bearing upon the validity of a no-fault benefits assignment to the verification process (New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Presbyterian Hosp. In City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]) and which this court applied in analogous circumstances (e.g. Amaze Med. Supply v Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50084[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 6 Misc 3d 130[A], 2005 NY Slip Op 50076[U] [App Term, 2d & 11th Jud Dists]). [*5]

Accordingly, plaintiff's motion for summary judgment is granted and the matter is 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., dissents in a separate memorandum.

Golia, J., dissents and votes to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint in the following memorandum:

I simply cannot concur with the majority opinion as relates to the facts of this case.

With regard to the facts herein, a document has been submitted as an "assignment" of benefits by the alleged eligible insured to the benefit of the plaintiff medical provider. It is, in fact, not an assignment, or any other document with "legal"
significance. It is simply a preprinted form, that is not signed, acknowledged, or ratified by anyone. Indeed, it doesn't even rise to the level of a forgery.

Nevertheless, the majority finds that this "document" falls within the line of cases that holds that the failure to demand verification during the claims procedure constitutes a waiver and precludes any objection to the assignment form (see Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists]). Therefore, my colleagues find that this paper should be deemed to be equivalent to an assignment form that was signed but not notarized, or notarized but failed in some other aspect.

Even in the simplest of circumstances no one would present a document for payment without making sure that a signature was affixed thereon. It appears that this simplest of circumstances does not appeal to the majority.

The line of appellate cases relied upon by the majority, and others on which I participated, have all dealt with assignments which contained the signature of the eligible insured person. My dissent in this case does not conflict with my findings in those cases and I therefore do not address whether or not I still adhere to those decisions.

I simply do not fathom how an unsigned piece of paper can form the predicate for an order granting summary judgment directing payment from anyone to anyone.

The mere fact that the defendant failed "timely to seek verification of the assignment's validity or to assert facial deficiencies" should not be deemed to confer standing to the holder of an unsigned piece of paper and thereby result in a money judgment.

Accordingly, I dissent and vote to modify the order by searching the record and awarding summary judgment in favor of defendant dismissing the complaint.
Decision Date: July 07, 2005