Westchester Med. Ctr. v Encompass Ins. Co.

[*1] Westchester Med. Ctr. v Encompass Ins. Co. 2007 NY Slip Op 52475(U) [18 Misc 3d 1109(A)] Decided on November 2, 2007 Supreme Court, Nassau County Winslow, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2007
Supreme Court, Nassau County

Westchester Medical Center, a/a/o Christopher Andrews, Michael Mascolo, Plaintiffs,

against

Encompass Insurance Company and Allstate Insurance Company, Defendants.



019900/06

F. Dana Winslow, J.

This motion by plaintiff Westchester Medical Center a/a/o Christopher Andrews and Michael Mascolo for an order pursuant to CPLR 3212 granting them summary judgment is granted as provided herein.

This cross-motion by defendants Encompass Insurance Company and Allstate Insurance Company for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is denied.

In this action pursuant to Insurance Law § 5106(a), the plaintiff Westchester Medical Center seeks payment of no-fault medical insurance benefits for services rendered to the individual plaintiffs, Christopher Andrews and Michael Mascolo. Westchester Medical Center has represented that its claim o/b/o plaintiff Michael Mascolo has been settled, however, that has not been established. Westchester Medical Center's motion for summary judgment with respect to Michael Mascolo's claim is denied without prejudice to renewal.

In its complaint, Westchester Medical Center alleges that it rendered medical services to Christopher Andrews for injuries related to a June 8, 2005 motor vehicle accident from June 26, 2006 through June 28, 2006; that it billed defendant Encompass Insurance Company for those service in the amount of $11,733.84 via an N-F5 and UB-92 on September 25, 2006, which notice was sent via certified mail, return receipt requested; that Encompass Insurance Company received that claim on September 27, 2006; and, that Encompass Insurance Company has failed to pay or deny that claim.

Westchester Medical Center presently seeks summary judgment pursuant to Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1), as well as attorneys fees pursuant to 11 NYCRR 65-4.6(e).

Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1) provide that first party benefits shall be paid as the loss is incurred and that such benefits are overdue if not paid within 30 days [*2]after proof of fact and the amount of the loss is submitted.

"The plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits [is] overdue." Nyack Hospital v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005) citing Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(3); Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986); Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

In opposition, Encompass Insurance has submitted an affidavit by claims representative Diana Dwyer in which she attests that Westchester Medical Center's claim for services rendered to Christopher Andrews was denied via a regulatory prescribed form on October 17, 2006 for not having been timely made. Stacey Melton, Senior Print Division Manager at the insurance company's processing center, details how claims are processed and denied. She states that because the NF-10 and Explanation of Benefits are dated October 17, 2006, office procedure indicates that they were mailed that day, prior to the 30 days in which Encompass was required to act on Andrew's claim.

The defendant Encompass Insurance has failed to submit a proper affidavit of service to establish that the denial of claim form was in fact mailed to plaintiff. Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 564-565, citing Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 (2nd Dept. 2001).

In any event, "even if the defendant timely issued the denial of claim form within 30 days of its receipt of the plaintiff's [claim], [a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.' " Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 (NY Sup. App. Term 2004); Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d 664 (2nd Dept. 2004). "A proper denial of claim must include the information called for in the prescribed denial of claim form." Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 565, citing NYCRR 65-3.4(c)(11); Nyack Hosp. v State Farm Mut. Auto. Ins. Co., supra, at p. 664.

11 NYCRR 65-3.3(e) provides:

""When an insurer denial a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice."

This "regulation ameliorates the impact of the severely shortened time periods in which a claimant must submit its notice of claim or proof of claim . . . and while the use of mandatory language, such as must,' is not conclusive, it is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary intent." Radiology Today v Citiwide Auto Leasing, Inc., 15 Misc 3d 92, 94 (NY Sup. App. Term 2007), citing McKinney's Cons. Laws of NY, Book 1, Statutes § 177; Matter of Janus Petroleum v New York State Tax Appeals Tribunal, 180 AD2d 53, 54 (3rd Dept. 1992), quoting People v Schonfeld, 74 NY2d 324, 328 (1989). A defense based on an untimely submission of claim is barred where, like here, there is a lack of proof of [*3]compliance with the notice requirement of 11 NYCRR 65-3.3(e). Radiology Today v Citiwide Auto Leasing, Inc., supra, at p. 94.

Plaintiff Westchester Medical Center is accordingly granted summary judgment in the amount of $11,733.84 as and for its claims asserted o/b/o Christopher Andrews, as well as attorney's fees.

Submit judgment on notice.

Dated:ENTER:

_________________________________

J.S.C.