New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co.

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New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co. 2011 NY Slip Op 32415(U) September 12, 2011 Sup Ct, Nassau County Docket Number: 5560/11 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --------------------------------- -------- ------------------------ )( [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 17 NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, a/a/o OLGA JAR; NYU- HOSPIT AL FOR JOINT DISEASES, a/a/o IDALIA GONZALEZ, Plaintiffs DECISION AND ORDER - against - Inde)( No: 5560/11 COUNTRYWIDE INSURACE COMPANY, Motion Sequence Nos: 001 and 002 Original Retu Date: 07- 07- Defendant. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following naed papers numbered 1 to 10 were submitted on this Notice of Motion on July 7 2011: Papers numbered Notice of Motion , Affirmation and Affdavits (2) Notice of Cross Motion , Affirmation and Affdavit Reply Affirmation and Affdavits (2) This motion by the plaintiffs , New York Hospita Medical Center of Queens a/a/o Olga Jara New York Hospital") and NYU- Hospital For Joint Diseases a/a/o Idalia Gonzalez (' 'NYU- Hospita" ), for an order pursuant to CPLR 3212 granting them sumar judgment is granted as provided herein. This cross-motion by the defendant, Countr Wide Insurance Company, for an order pursuant to CPLR 3211(a)(7) and 3212 granting it sumar judgment dismissing the complaint is denied. In this action pursuant to Insurance Law 5106 , the plaintiff hospitals seek payment of no- [* 2] fault benefits and to recover for medical services allegedly provided to their assigneds for injuries sustained in motor vehicle accidents. An insurer is required to payor deny a claim for no- fault benefits within 30 days afer NYCRR 65274 proof of the claim. Insurance Law ~ 5106(a); Presbyterian Hosp. in the City of New York v Marland Cas. Co. , 90 NY2d 8(a)(1); 278 (1997), the claimant provides rearg den. 90 NY2d 937 (1997). Its failure to do so precludes it from raising most Presbyterian Hosp. in the City of New York supra , at p. 282. However, an defenses to the claim. insurer may e)(tend the 30 day period in which it has to payor deny a claim by makng a request for additional verification of the claim "withn 15 business days of receipt (of one J of the prescribed verification forms. " 11 NYCRR 65- 3.5(b); COfJ. 27 AD3d96 (2 nd Dept 2005), see also Iv to apJJ granted , Nyack Hosp. v General Motors Acceptace affdas mod 8NY3d294 7 NY3d 710 (2006), New York Hosp. Medical Center ofOueens v Countr Wide Ins. Co. , 295 AD2d 583 , 584- (2007); 585 (2 Dept 2002); New York & Presbyterian Hosp. v American Tr. Ins. Co. 287 AD2d 699 , 700 Dept 2001). Ifthe verification is not provided withn 30 calendar days afer the original request (a Jt a minimum. . . the insurer shall , within 10 calendar days , follow up with the par from whom the verification was requested , either by telephone call , properly documented in the file , or by mail." 11 NYCRR 65- 6(b). An insurer does not have to payor deny a claim until it has received verification of all of the relevant inormation requested. See Montefiore Medical Center v Governent Employees Ins. Co. 34 AD3d 771 (2 see also Dept 2006); Mount Sinai Hosp. v Allstate Ins. Co. , 25 AD3d 673 , 674 Dept 2006). Interest only accrues when payment of a no- fault claim is " overdue. " 11 NYCRR 65- 8(a). Benefits are overdue only ifnot paid within 30 calendar days of when the insurer receives a claim or verification. Insurance Law ~ 5106(a), 11 NYCRR 65- 8(a); Presbyterian Hosp. in City [* 3] of N. Y. v Marland Cas. Co. , 90 NY2d 274 , 278 (1991); New York & Presbyt. Hosp. v Progressive Cas. ins. Co. , 5 AD3d 568 , 570 (2 Dept 2004). New York Hospital alleges that it provided medical care to its assignor Olga Jara from Febru 5 , 2011 through Februar 7 , 2011 for injures which were the result of a Febru 5 , 2011 automobile accident. It fuher alleges that Olga Jara was a person covered under an automobile liabilty insurance policy issued by Countr Wide to Michael Guiltada which contained aNew York State no- fault endorsement; that it biled Countr Wide for its services via a Hospital Facilty form F5 as well as a UB- 04 for $4 960. 67 on Februar 25, 2011 which was mailed certified mail receipt requested and received by Countr Wide on March 3 , retu 2011; and , that in violation of NYCRR65- 8(a)(I), (c) New York Hospital failed to pay the bil or issue a denial form. New York Hospital seeks statutory interest and attorneys ' fees pursuat to Insurance Law ~ 5106(a) and NYCRR 65- NYU- Hospital alleges that it provided medical care to its assignor Idalia Gonzalez from Februar 22 though Februar 23 2011 for injuries which resulted from a November 3 , 2010 motor vehicle accident. It fuher alleges that Idalia Gonzalez was a person covered under an automobile liabilty insurance policy issued by Countr Wide to Arlene Cruz which contained aNew York State no- fault endorsement; that it biled Countr Wide for its services via a Hospital Facilty Form N- as well as a UB- 04 and DRG Master Output Report for $16 553.40 on March 3 2011 which was mailed certified mail retu receipt requested and received by Countr Wide on March 7 , 2011; and that in violationof11 NYCRR 65- 8(a)(I), (a), NYU- Hospita failed to pay the form. NYU- Hospital seeks statutory interest and attorneys ' ~~5106(a) and 11 NYCRR 65- bil orissue a denial fees pursuant to Insurance Law [* 4] In support of its motion , New York Hospital has submitted a copy ofthe retur indicates that an "NFS AOB UB- 04 Olga Jara" was received by Countr receipt which Wide on March 3 , 2011. It has also submitted an affidavit of Steven Attias, a Biler and Account Representative of New York Hospital , who is employed by Hospital Receivable Systems , Inc. He attests that he has personal knowledge about Olga Jara s patient account and that on Februar 25 2011 he biled Countr Wide via a hospital facilty form NF- 5 and UB- 04. He attests to having mailed those forms "via certified mail at a United States Post Offce located in Bellmore , New York under certified mail number 7010 27800002 8255 8113" and that the United States Posta Service retued signed by a representative of defendant dated March 3 2011. He the receipt for that number fuer attests that defendant insurer has not paid or denied that claim. Similarly, in support of its motion , NYU - Hospital has submitted a copy of the retu receipt which indicates that an "NFS AOB UB- 04 DRU Idalia Gonzalez" was received by Countr Wide on March 7 , 2011. It has also submitted the affidavit of Steven Attias , a Biler and Account Representative ofNYU- Hospital who is employed by Hospital Receivable Systems , Inc. He attests that he has personal knowledge about Idalia Gonzalez s patient account and that on March 3 , 2011 he biled Countr Wide via a hospital facilty form NF- 5; UB- 04 and DRG Master Output Report. He attests to having mailed those forms on March 3 , 2011 "via certified mail at a United States Post Offce located in Bellmore , New York, under certified mail number 701027800002 8255 8403" and that the United States Posta Service retued the receipt for that number signed by a representative of defendant dated March 7, 2011. He furter attests that defendant insurer has not paid or denied that claim. Steven Attias ' attestment to having personally mailed the pertinent forms coupled with [* 5] signed retu receipt cards establishes the plaintiff hospitals ' mailings and the defendants ' receipt of the requisite forms. citing Westchester Medical Center v Mercur Cas. Co. , 22 Misc 3d 233 (2008) Westchester Medical Center v Libert Mut. Ins. Co. , 40 AD3d 981 (2 Dept 2007); Mount Sinai Hosp. v Joan Service Corp. , 22 AD3d 649 (2 Dept 2005). In addition , while certified mail receipts alone do not provide evidence of receipt of a paricular item (Mid City Const. Co.. Inc. v Sirius America Ins. Co. , 70 AD3d 789 (2 Ins. Co. , 29 AD3d 548 (2 (1 st Dept Dept. 2006); Dept 2010); New York & Presbyterian Hosp. v Allstate State Far Mut. Auto. Ins. Co. rKanam 3 AD3d 418 419 2004)), where , like here , the receipts bear specific item numbers pertining to a specific claimant or account , they are satisfactory to establish receipt thereof ( Westchester Medical. Center v Libert Mutual Insurance Company supra see also NewY ork and Presbyterian Hosp. v Countr Wide Ins. Co. , 44 AD3d 729 (2 Countr Wide Dept 2007); The New York Hosp. Medical Center of Queens v Ins. Co. , 2008 WL 2582871 (Supreme Cour Nassau County 2008)). The plaintiff hospitals have accordingly established their entitlement to sumar judgment thereby shifting the burden to the defendant to establish the e)(istence of material triable issues of fact. In opposition , the defendant, Countr Wide , in fact acknowledges receipt of the Olga Jara claim on March 4 , 2011. It neverteless maintans that in accordance with the applicable insurance regulations , it issued a verification request to New York Hospital regarding Olga Jara s claim on March 29 2011 as well as a second follow-up verification request on April 29 , 2011 , neither of which have been responded to. Countr Wide also acknowledges receipt ofIdalia Gonzalez s claim on March 8 , 2011. It neverteless maintains that in accordance with the applicable insurance regulations , it issued a verification request to NYU Hospita on March 22 , 2011 as well as a second [* 6] follow-up verification request on April 22 , 2011 , neither of which have been responded to. The issuance and mailing of those requests for verification has been established via an affidavit of Enz Lyons , a No- Fault Litigation Supervisor at Country Wide , who has set forth in detal the routine practice and procedure regularly followed by Countr Wide upon receipt of clais. Nassau In. Co. see also Thbeault v Travelers Ins. Co. , 37 AD3d 1000 v Muray , 46 NY2d 828 , 829- 830 (1978); Dept 2007). Neverteless , New YorkHospitahas established via an affidavit from Sharon Shaf a Secreta employed by Hospital Receivables Systems which handles the no- fault claims for New York Hospita , as well as a retu Countr Wide March 10 , receipt, that the complete medical record of Olga Jara was sent to via certified mail retur receipt requested on March 8 , 2011 and received by it on 2011. By another affidavit of Sharon Shaf , a Secretar employed by Hospitals Receivables Systems which handles the no- fault claims for NYU- Hospital , NYU- Hospita has also established that the complete medical records of Idalia Gonzalez was sent to Countr Wide via certified mail retu receipt requested on March 16 2011 and received by it on March 21 2011 thereby laying to rest Countr Wide s defense that the claims advanced are prematue. Accordingly, afer due deliberation , it is ORDERED , that the plaintiffew York Hospital' s motion for sumar judgment is granted to the e)(tent that it is awarded $4, 960. 67 for its claim for no- fault benefits as assignee of Olga Jara; and it is fuer ORDERED , that the plaintiffNYU- Hospita' s motion for sumar judgment is granted to the e)(tent that it is awarded $16, 553. 40 for its claim for no- fault benefits as assignee of Idalia Gonzez; and it is fuer ORDERED , that the plaintiff New York Hospita is awarded statutory interest commencing [* 7] 30 days afer Olga Jara s claim was complete , April 9 , 2011 , and the plaintiffNYU- Hospita is awarded statutory interest commencing 30 days afer Idalia Gonzalez s claim was complete i.e. April 20 , 2011. Insurance Law ~ 5106; and it is fuer ORDERED , that the plaintiffs are also awarded attorneys ' fees as allowed by Insurance Law ~ 51 06( a) and 11 NYCRR 65- 6( e) and the superintendent's interpretation thereof which limits the attorneys ' fee to " 20% of the total amount of first par benefits awarded (which) is derived from the tota amount of individual bils disputed. . . regardless of whether one bil presented as a tota or multiple bils are claim for benefits , based upon the health services rendered by a provider to the same eligible insured. LMK Psychological Servces. P. C. v State Far Mut. Auto. Ins. Co. NY3d 217 (2009). Submit judgment on notice. Dated: Mineola, New York September 12 2011 ENTER: Copies mailed to: Joseph Henig, P. Attorneys for Plaintiff Jaffe & Koumourdas , LLP Attorneys for Defendant ENTERED SEP 1 3 2011 NASSAU COUNTY COUNTY CLERK' S OF.FICE

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