D & R Med. Supply, Inc. v Clarendon Natl. Ins. Co.
Annotate this CaseDecided on February 26, 2009
Civil Court of the City of New York, Kings County
D & R Medical Supply, Inc. a/a/o Hardy Andrew, Plaintiff,
against
Clarendon National Insurance Company, Defendant.
131695/07
Plaintiff:
Sylvain R. Jakabovics, Esq.
2630 Ocean Avenue, Suite A-3
Brooklyn, NY 11229
Defendant:
Law Offices of Moira A. Doherty
50 Charles Lindbergh Boulevard, Suite 400
Uniondale, New York 11553
Genine D. Edwards, J.
In this action, plaintiff seeks to recover no-fault benefits from the defendant.
Plaintiff now moves for summary judgment and defendant cross-moves for the same relief.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to
demonstrate the absence of any material issues of fact. St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611,
821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508
NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge
of the facts. See CPLR 3212 (b). If the moving party fails to make such a showing, the
motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis
v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991). Once the movant provides
sufficient proof the burden of production rests on the adverse party to demonstrate the existence
of a triable issue of fact. See Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2d Dept.
1996).
Plaintiff established a prima facie case as to the creation and mailing of the subject
bill, in the amount of $1,104.00. Defendant, however, persuasively contends that plaintiff's
lawsuit is premature since the plaintiff failed to comply with outstanding verification requests.
Defendant properly proved timely service of its initial verification request for an invoice, CPT
codes and medical records. In response, plaintiff provided an invoice, but failed to provide
proper CPT codes and medical records. Defendant sent a second and third verification request,
acknowledging receipt of plaintiff's invoice, but indicating that the proper coding and medical
records were still [*2]outstanding. There was no further response
from the plaintiff. Although plaintiff's affiant indicated that it was his duty to handle verification
requests and responses, he never asserted that he or anyone else did so in this matter.
This Court finds that the burden rests with the plaintiff to properly verify its claim.
Plaintiff cannot simply rest on its laurels and ignore a verification request. See Lenox Hill Radiology and MIA P.C.
v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 (Civ. Ct. New York
County 2008). Defendant did all it could do by sending two follow-up requests. Since the
plaintiff desires to be paid, the onus is on it to ensure that the defendant has all of the required
information to verify and pay the claim. Plaintiff completely ignored its burden and commenced
this action prematurely.
Furthermore, it should be noted that, whether the plaintiff possesses the verification
requested or it is in the hands of the referring physician, plaintiff cannot shift its obligation to
verify a claim to the defendant.
Accordingly, the complaint is dismissed.
This constitutes the decision and order of this Court.
Dated: February 26, 2009
____________________________
Genine D. Edwards
J.C.C.
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