Top Choice Pharm. Corp. v Merchants Mut. Ins. Co.

[*1] Top Choice Pharm. Corp. v Merchants Mut. Ins. Co. 2022 NY Slip Op 50867(U) Decided on September 14, 2022 Civil Court Of The City Of New York, Queens County Li, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2022
Civil Court of the City of New York, Queens County

Top Choice Pharmacy Corp. As Assignee of Viera, Plaintiff,

against

Merchants Mutual Insurance Company, Defendant.



Index No. CV-725161-20/QU

Plaintiff's counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570 Defendant's counsel:
Gullo & Associates, LLP
1265 Richmond Avenue
Staten Island, NY 10314 Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint and Plaintiff's cross-motion in its claims:

Papers Numbered

Defendant's Notice of Motion and Affirmation in Support dated April 4, 2021 ("Motion") and filed with the court on April 26, 2021. 1
Plaintiff's Cross-Motion and Affirmation in Support dated August 4, 2021 ("Cross-Motion") and electronically filed with the court on the same date. 2
Defendant's Affirmation in Opposition dated December 27, 2021 ("Opposition") and electronically filed with the court on December 30, 2020. 3

II. Discussion and Decision

In a summons and complaint filed on December 18, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,359.40 in unpaid first party No-Fault benefits for medicine prescribed to Plaintiff's assignor Viera on September 24, 2020, plus attorneys' fees and statutory interest (see Motion, Aff. of O'Shea, Ex. A). Defendant moved for summary judgment dismissing the complaint on the grounds that Plaintiff lacked standing, and alternatively that Defendant timely denied Plaintiff's claim based on lack of medical necessity. Plaintiff cross-moved for summary judgment on its claim against Defendant. An oral argument by both parties was conducted by this Court.

III. Discussion and Decision

CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Defendant contended that Plaintiff lacked standing to bring action on its claim for No-Fault benefits provided to Viera and alternatively that the treatment Plaintiff provided to Viera was not medically necessary. Defendant argued Plaintiff lacked standing because the assignment of benefits was executed by Viera, who was a minor. Here, even assuming that it was improper for a minor to execute an assignment of benefits as Defendant contended (see 11 NYCRR 65-3.11[a]), Plaintiff presents prima facie entitlement to No Fault benefits by presenting an assignment of benefits form where Defendant fails to timely seek verification of the assignment's validity (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007], see Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129[A], 2014 NY Slip Op 51810[U] *1 [App Term 2d Dept 2014]). Moreover, Defendant's failure to timely object to the assignment waived any defenses based on any deficiencies in the assignment (Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348 [2d Dept 2005]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50488[U] *2 [App Term 2d Dept 2010], see Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 51 Misc 3d 138[A], 2016 NY Slip Op 50594[U] *1 [App Term 2d Dept 2016]).

Regarding medical necessity, Defendant's denial on that ground must completely and clearly state the reason for denial of the claim and apprise Plaintiff of the grounds upon which [*2]disclaimer is based (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] *1 [App Term 2d Dept 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] *1 [App Term 2d Dept 2003], see Delta Diagnostic Radiology, P. C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 126[A], 2006 NY Slip Op 52370[U] *2 [App Term 2d Dept 2006], see e.g., Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19, 21 [App Term 2d Dept 2013]). To support the contention that the prescribed medication was not medically necessary, Defendant presented the affirmation of Agrawal, M.D., dated November 3, 2020. Dr. Agrawal attested that Viera "was prescribed Lidocaine 5% ointment by Dr. Hausknecht, which was not medically necessary and not causally related as it is not supported by enough evidence. Lidocaine is questionable in a 15-year-old [sic] as efficacy, especially given the side effects of cardiac arrythmia and seizures. Her pain seems to be causally related, but I question this aggressive testing and treatment in a 15 year old child" (Motion, O'Shea Aff., Ex. C at 6). Dr. Agrawal's opinion that the medication prescribed was not medically necessary was entirely conclusory (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). In addition, while Dr. Agrawal addressed the advisability of the medication prescribed for Plaintiff, nowhere did Dr. Agrawal state that such treatment was unnecessary. Therefore, Defendant's denial on the ground of medical necessity was factually insufficient and may not be raised as a defense to Plaintiff's claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U] *2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1-2).

Regarding Plaintiff's Cross-Motion, Plaintiff's sole contention was that Defendant's payment or denial of Plaintiff's claim was untimely. Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and "that payment of no-fault benefits [was] overdue" (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term 2d Dept 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Plaintiff pointed to its bill and Defendant's denial of claim form which indicated that Defendant received Plaintiff's bill for $1,359.40 on October 28, 2020 (see Motion, O'Shea Aff., Ex. C). A denial of claim form, however, is insufficient to establish a medical provider's prima facie case but suffices to establish Defendant's receipt of Plaintiff's claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). Although Defendant's denial of claim form established Defendant's timely denial of the claim, as discussed above, Defendant failed to establish the lack of medical necessity of prescribed medication upon which Plaintiff based its claim (Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). Therefore, Plaintiff has demonstrated entitlement to summary judgment on its claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U]*2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant's Motion for summary judgment dismissing Plaintiff's complaint (Motion Seq. #1) is denied; and it is further

ORDERED that Plaintiff's Cross-Motion for summary judgment on its claim against Defendant (Motion Seq. #2) is granted; and it is further

ORDERED that the Clerk shall enter judgment in Plaintiff's favor and against Defendant in the amount of $1,359.40 together with statutory interest from October 28, 2020 and statutory attorneys' fees.

This constitutes the court's Decision and Order

September 14, 2022
Queens County Civil Court
Honorable Li, J.C.C.