Exclusive Med. Supply, Inc. v. MVAIC

• Decision Date: 11 April 2012
• Docket Number: 67806/09
• Citation: 2012 NY Slip Op 50616
• Parties: Exclusive Medical Supply, Inc., a/a/o Pierre Yango, Plaintiff, v. MVAIC, Defendant.
• Court: New York Civil Court

2012 NY Slip Op 50616

Exclusive Medical Supply, Inc., a/a/o Pierre Yango, Plaintiff,

v. MVAIC, Defendant.

67806/09

Civil Court of the City of New York, Kings County

Decided on April 11, 2012

Appearances by:

Attorneys for Plaintiff Law Offices of Florence D. Zabokritsky, P.L.L.C.

Attorneys for Defendant Cruz & Gangi and Associates

Harriet L. Thompson, J.

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

PapersNumbered

Notice of Motion ..................................... ..1, 2

Order to Show Cause and Affidavits Annexed ____________

Answering Affidavits ..______3____

Replying Affidavits ._____________

Exhibits _____________

Other .........................................................._____________

This action was commenced by service of a summons and complaint to recover no-fault benefits allegedly incurred by the Plaintiff Assignor as a result of alleged injuries arising out of an automobile accident on August 23, 2006. In or about August 6, 2009, the Defendant interposed an answer which raised various affirmative defenses, and concomitantly, served demands for discovery.

In or about May 31, 2011, the Plaintiff moved this court for an order pursuant to CPLR §3212 for summary judgment, or alternatively, for partial summary judgment. The Plaintiff avers that its has established its prima facie case by the submission of admissible evidence demonstrating that the billing documents were mailed and received by the Defendant and payment thereof is overdue. The Plaintiff produces an affidavit of its Billing Manager and Custodian of Records, Serge Magdyuk, who attests to his first-hand knowledge of the Plaintiff's business office procedures for the generation of bills and the mailing procedures of the bills. Mr. Magdyuk states that the respective bills for durable medical equipment provided to the assignor were properly mailed to the Defendant on or about November 8, 2006, November 13, 2006 and February 9, 2007, respectively. Additionally, as shown in Plaintiff's exhibit C to the motion, the Plaintiff produced its bills and assignment of benefits form.

The Defendant, by cross-motion dated August 5, 2011, seeks summary judgment and dismissal of the complaint pursuant to Articles 51 and 52 of the Insurance Law. The Defendant argues that the Assignor is not a "qualified person" entitled to insurance coverage by MVAIC. The Defendant's Qualifications Examiner affirms that on or about January 29, 2007, MVAIC received durable medical equipment bills for the first and second causes of action and subsequently, on or about February 16, 2007 received durable medical equipment bills for the third cause of action. The Defendant asserts that on January 29, 2007, February 16, 2007, March 19, 2007 and May 5, 2007, the Defendant mailed Plaintiff a request for a "notarized statement from UV owner about the relation to applicant and permission to drive." (Defendant's exhibit D) The Defendant argues that as a condition precedent to coverage by MVAIC, the Plaintiff is mandated to provide the aforementioned sworn statement in order to be deemed a "qualified person". The Defendant further avers that although the Notice of Intent to Make a Claim states that the vehicle is owned by Rolle Maquinzi, the Plaintiff states in the detailed description of the accident that the second vehicle "hit my car" which has been interpreted by MVAIC to imply that the vehicle may be stolen, and if not stolen, a sworn statement must be provided that there was consent by the owner to operate the vehicle. The Defendant proffers that the offending vehicle may be registered to Rolle Maquinzi but could be owned by the Plaintiff or it could be a stolen vehicle.

The Defendant relies on Section 5202(b) of the Insurance Law which provides in relevant part that the Plaintiff must not be the owner of the uninsured vehicle to meet the qualifications standards to be deemed a "qualified person" for MVAIC coverage. Moreover, the Defendant relies on Insurance Law 5103(b)(3)(iii) which provides that MVAIC may deny coverage to a person who is operating or occupying a motor vehicle known to him to be stolen.

In opposition to the cross-motion and in further support of their motion, the Plaintiff argues that Appellate authority supports their proposition that the affidavit sought by the Defendant to determine that the Plaintiff is a qualified person lacks merit as a matter of law; that the Defendant failed to establish proper verification to toll the statutory time to pay or deny the medical services bills; that the alleged verification was vague and ambiguous; and that the Defendant failed to properly rebut the prima facie case of the Plaintiff and accordingly, the Plaintiff is entitled to judgment as a matter of law.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Plaintiff must prove the facts necessary to establish its claims. In addition, the Plaintiff must prove that the amount of loss sustained were mailed to the Defendant and received by the Defendant, and that payment of the no-fault benefits were neither paid or denied within thirty (30) days of receipt. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dep't, 2004); see also Westchester Med. Center v Liberty Mutual Ins. Co., 40 AD3d 981 (2nd Dep't, 2007); Insurance Law 5106(a). More recently, the Appellate Term determined in the matter of Ave T MPC Corp v. Auto One Ins. Co., 32 Misc 3d 128(A) [2011] and its progeny as discussed below that in addition to the aforementioned prima facie elements, the Plaintiff, in a case where the defendant has issued a denial of basic economic loss attributed to the automobile accident, the Plaintiff must also substantiate that the denial was untimely or "that the defendant has issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law §5106[a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2010]; see also New York Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006]." See also Superior Oxygen & Othro Supplies, Ltd. V. Auto One Ins. Co., 2012 Slip Op 50348(U).

In the Plaintiff's case herein, the Billing Manager and Custodian of Records has described in sufficient detail his personal knowledge of the office practices and procedures employed by the Plaintiff and more importantly, he attests that he personally mailed the bills for services rendered to the Assignor in this case. He further states that he retained copies of the proof of mailing of the bills and "the original post office pages are available for inspection and copying by those with need". (Affidavit of Serge Magdyuk at 16 in Plaintiff's exhibit B). However, the Plaintiff did not offer any proof of the mailing notwithstanding this open representation. Nevertheless, the Court finds that Billing Manager's attestation of mailing is reliable and sufficient.

Although Plaintiffs in these cases, more often than not, have resorted to reliance on the written denials (NF-10) of the insurer to substantiate proof of mailing of the bills and receipt by the insurer, the instant motion does not contain any such denial(s). The affidavit of the Billing Manager explicitly states "the denials that are annexed to the instant motion are the denials (NF-10's) that were actually received by our office. In particular, the denials at issue in this action were received, kept and relied upon by Plaintiff as part of Plaintiff's ordinary course of business" (Affidavit of Serge Magdyuk at 18 in Plaintiff's exhibit B). Ironically, this court finds no admissible evidence from the Plaintiff or the Defendant to substantiate that the bills of the provider were ever denied in this case. However, this court can presume this fact based on the claims made by the Defendant that the Plaintiff's Assignor did not yet qualify for MVAIC benefits. Under these circumstances and the above case authority, the Plaintiff would be required to prove that the denials were untimely or "that the defendant has issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law §5106[a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168[2010]; see also New York Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 [2006])." Since this presumed new element of the prima facie has been evolving in the courts and clear case precedent was not firmly rooted in the law at the time of the submission of this motion, this court will not unduly prejudice the Plaintiff by denying this motion on this ground.

Turning our attention to the cross motion for summary judgment by the Defendant.

First, the Defendant acknowledged receipt of the bills of the provider on January 29, 2007 and February 16, 2007 (Defendant erroneously states February 26, 2006 in the supporting affirmation and affidavit). Subsequently, the Defendant states that on January 29, 2007, February 16, 2007 andMarch 5, 2007, the Defendant requested an affidavit from the PROVIDER (emphasis added) in pertinent part as follows:

" Please be advised that before an applicant is entitled to No-Fault benefits from MVAIC the injured person must meet the requirements of a "qualified person" pursuant to Article 52 of the New York State Insurance Law. At this time, the captioned applicant/patient has not yet been qualified....The following is (are) required to qualify this person. If you are able to provide the documents/information, it will assist in meeting the requirements for qualification.

Notarized statement from UV owner about relation to applicant and permission to drive.

If and when the applicant qualifies for benefits from MVAIC, you will be advised and we will begin the processing of your bills. If other coverage is found to exist, making the applicant ineligible for benefits from MVAIC the applicant and the applicant's attorney will be advised of the proper carrier. We recommend that you continue to submit bills so they will not be

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