Barakat, P.T., P.C. v. Liberty Mutual Fire Ins. Co.

• Docket Number: Index No. CV-752151-18/KI,Cal. Nos. 52,53,Motion Seq. Nos. 7,8,NYSCEF Doc. No. 18
• Decision Date: 14 November 2023
• Parties: BARAKAT, P.T., P.C., A/A/O HERMENEGILDO, MONTAS, Plaintiff, v. LIBERTY MUTUAL FIRE INS. CO., Defendant.
• Court: New York Civil Court

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2023 NY Slip Op 34110(U)

BARAKAT, P.T., P.C., A/A/O HERMENEGILDO, MONTAS, Plaintiff, v. LIBERTY MUTUAL FIRE INS. CO., Defendant.

Index No. CV-752151-18/KI, Cal. Nos. 52, 53, Motion Seq. Nos. 7, 8, NYSCEF Doc. No. 18

Civil Court of the City of New York, Kings County

November 14, 2023

Unpublished Opinion

DECISION AND ORDER

Honorable Jill Epstein, Judge

Recitation as required by CPLK § 2219(a) of the papers considered in review of this Motion:

Papers

Notice of Motion and Affidavits Annexed 1

Cross-Motion .........2

Opposition & Reply .........3

Exhibits .........4

Other .........

Upon the foregoing cited papers, after oral arguments the Decision/Order on Defendant's and Plaintiffs Motions for Summary Judgment are decided as follows:

Defendants Motion for Summary Judgment is DENIED and Plaintiffs Motion for Summary Judgment is GRANTED.

As an initial matter. Defendant failed to establish its policy exhaustion defense. "Under the no-fault system, payments of benefits 'shall be made as the loss is incurred.' Under this regulatory scheme, 'an insurer shall pay benefits directly to the 'applicant,' or, upon assignment by the applicant, 'shall pay benefits directly to providers of health care services.' In addition 'an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim'". See Alleviation Med. Servs.. P.C. v. Allstate Ins. Co.. 191 A.D.3d 934 (2d Dep't, 2021) (internal citations omitted). '"[A]n insurer must pay or deny only a verified claim-that is, a claim that has been verified to the extent compliance with section 65-3.5 dictates in the particular case-within 30 calendar days of receipt: and conversely, is not obligated to pay any claim until it has been so verified.' Once claims have been verified they are subject to the priority of payment regulation, 11 NYCRR 65-3.15." See Alleviation Med. Servs., P.C. v. Allstate Ins. Co.. 191 A.D.3d 934 (2d Dep't. 2021). "In contrast, in the instant case, by denying the claim ..., defendant implicitly declared that the claim at issue was fully verified. As we read Nyack Hosp, to hold that fully verified claims are payable in the order they are received, defendant's argument-that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage-lacks merit. Consequently, defendant has not established its entitlement to summary judgment dismissing the complaint." Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc.3d 44, 45-46 (App. Term, 2d Dep't, 2017) (internal citation omitted) affirmed by Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 191 A.D.3d 934 (2d Dep't, 2021).

Secondly, Defendant failed to establish the timely and proper mailing of the denials as the denials attached to Defendant's Motion contain material errors from in Box # 30 having stated an incorrect amount that was billed by the Plaintiff to Box # 32 to erroneously stating the wrong amount in dispute, and in one instance on COA # 3 even identifying wrong date of service in the denial. It has been well established that "[a] proper denial of a claim for no-fault benefits must include the information called for in the prescribed denial of claim form and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. However, a timely denial of a no-fault insurance medical claim 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." St. Barnabas Hosp, v. Allstate Ins. Co.. 66 A.D.3d 996 (2d Dep't, 2009) (internal quotation marks, brackets, and citations omitted). See also General Acc. Ins. Group v. Cirucci. 46 N.Y.2d 862 (1979); St. Vincent's Hosp. & Med. Ctr. v. New Jersey Mfrs. Ins. Co., 82 A.D.3d 871 (2d Dep't, 2011).

Finally Defendant failed to establish its "post-IME cut off defense of medical necessity for all causes of action. "An 1ME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party's medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert's prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment." James J. Kim, L. Ac.. P.C. v. Allstate Ins. Co., 75 Misc.3d 1230(A) (Civ. Ct., Kings County, 2022) (Moyne, J.). "An IME cut-off is not a complete defense to the action. While an IME can demonstrate a...