Lenox Hill Radiology v. Global Liberty Ins. Co. of N.Y.
| Decision Date | 06 July 2017 |
| Docket Number | No. SMCV0083–16.,SMCV0083–16. |
| Citation | 65 N.Y.S.3d 492 (Table) |
| Parties | LENOX HILL RADIOLOGY and MIA, P.C., a/a/o Manuel Garza, Plaintiff, v. GLOBAL LIBERTY INSURANCE CO. OF NEW YORK, Defendant. |
| Court | New York District Court |
ORDERED that the motion by defendant for summary judgment dismissing the complaint, pursuant to CPLR 3212, is denied.
Defendant moves by summary judgment for dismissal of plaintiff's complaint, which seeks recovery of first-party no-fault benefits in the sum of $6,651.66 for medical services rendered to plaintiff's assignor on 09/21/15 through 10/26/15 as the result of an automobile accident which occurred on 09/03/15.
The ground for dismissal is defendant's contention that the claims totaling $6,651.66 are not overdue, as the time to pay or deny has not commenced, due to the plaintiff's failure to provide the information requested in its verification requests and follow-up verification requests, for each of the collective claims. Defendant claims an "exhaustive" search of its computer and paper file revealed that the sought verification information was never received by defendant.1
In opposition to the motion, plaintiff asserts defendant has failed to demonstrate by admissible evidence, that the verification requests were timely and properly mailed to plaintiff. Also, plaintiff contends the affidavits submitted in support of defendant's motion, have not provided a foundation for admission of its business records, a necessary part of demonstrating plaintiff's office practice and procedures.
Plaintiff further asserts defendant has not shown "good reasons" for demanding the verifications which tolled the time from which defendant had to pay or deny the claims. Finally, plaintiff contends it responded to the verification requests of defendant by providing all the documents within its control, which it claims were already in defendant's possession, thereby making defendant's verification requests defective and precluding defendant from raising non-coverage defenses to plaintiff's claims.
No-fault regulations mandate that a claim for health services expenses be submitted by written proof of claim to the insurer, no later than 45 days after the date that health services were rendered (see 11 NYCRR § 65–2.4 [c] ). After receipt of the written proof of claim, a no-fault claim is overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law § 5106[a] ; 11 NYCRR § 65–3.8 [a][1],[c] ).
The thirty days may be extended where an insurer requests additional verification within 15 days of receipt of the claim (see 11 NYCRR 65–3.5 [b] ). If the insurer has not received a verification from the plaintiff within 30 days of the initial request, an insurer must send a follow-up verification request by phone call or mail within 10 days to the requested party (see 11 NYCRR § 65–3.6 [b] ). This tolls the insurer's obligation to pay or deny the claim until it receives the additional information requested (see 11 NYCRR 65–3.8 [a][1]; Hospital For Joint Diseases v. Traveler's Property Casualty Ins. Co., 9 N.Y.3d 312 [2007] ).
Where a requested verification is not provided an insurer is not required to pay or deny the claim (see 11 NYCRR § 65–3.8 [3]; NY & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 A.D.3d 568, 570, 774 N.Y.S.2d 72 [2nd Dept 2004] ). However, an insurer may deny the claim after 120 calendar days if plaintiff does not provide all of the requested verification under its control or possession, or written proof providing reasonable justification for its failure to comply (see 11 NYCRR § 65–3.5 [o], for all claims submitted after 4/1/13). Also, an insurer's "non-substantive, technical or immaterial defect or omission, as well as an insurer's failure to comply with a prescribed time frame" shall not "negate an applicant's obligation to comply with the request or notice" (see 11 NYCRR § 65–3.5 [p], for all claims submitted after 4/1/13).
Though an insurer is entitled to request and receive information necessary to the processing and verifying of the provider's claim (see 11 NYCRR § 65–3.5 [c] ), the scope of the requested materials are not unlimited (see generally 11 NYCRR 65–3.6 [b] ). Insurance regulations require the existence of "good reasons" to demand verification (see 11 NYCRR 65–3.2 [c]; Doshi Diagnostic Imaging Servs. v. State Farm Ins. Co., 16 Misc.3d 42, 842 N.Y.S.2d 153 [2nd Dept 2007).
A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ); see also Manhattan Medical v. State Farm Mut. Ins. Co., 20 Misc.3d 1144[A][Civ. Ct. Richmond Cty.2008] ).
A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts and the affidavit shall recite all the material facts and show there is no defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212[b] ). A conclusory affidavit or an affidavit by an individual who lacks personal knowledge of the facts does not satisfy the proponent's prima facie burden (see JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373 [2005] ).
Here, the Court determines that defendant has failed to demonstrate a prima facie entitlement to summary judgment for dismissal with proof in admissible form sufficient to establish there are no material issues of fact (see Alvarez v. Prospect Hospital, supra; Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 35 A.D.3d 720, 721, 827 N.Y.S.2d 217 [2nd Dept 2006] ; Prime Psychological Services P.C. v. Nationwide Prop. & Cas. Ins. Co., 24 Misc.3d 230, 232, 882 N.Y.S.2d 844 [Civ Ct. Richmond Cty.2009] ).
The Court notes that the affidavit of Regina Abbatiello, No–Fault Claims Adjuster, demonstrates she was personally familiar with the standard office policy and operating procedures for the processing of no-fault claims in litigation or arbitration, including payments and denials of benefits. She states her affidavit was given after a detailed review "of all document/ correspondence and computer records maintained by Global in accordance with its standard operating procedures that are recorded/document and maintained under claim no. NF15930301."
She further states she generated the verification requests, and follow-up additional verification requests with carbon copies, to the plaintiff assignor at the address shown on the NF–3 claim forms, seeking information, including MRI films, and the referring doctor's report on the need for multiple MRI studies. Defendant's records show that a verification request was sent out on 11/18/15 for each claim which had been received on 11/09/15.
Upon not receiving a response, a second verification request was sent out on 12/18/15. No response with the requested information was provided.
The Court finds the stated procedure in the instant matter is conclusory and lacking in relevant specifics to set forth the standard office practice or procedure used to ensure that items were properly addressed and mailed (see Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App.Term 2nd Dept 2007] ). The proof establishes that verification requests are placed by the adjusters in the outgoing mail bin. However, the proof fails to sufficiently demonstrate what happens to the verification requests after placement in the mail bin. It appears that mixed mail for defendant's office is placed in the mail bin, not just mail being sent for verification requests. Since the mail is submitted in a sealed envelope, the procedure described fails to show the contents of each envelope which is being processed (see Presbyterian Hosp. v. Maryland Casualty Ins. Co., 226 A.D.2d 613, 641 N.Y.S.2d 395 [2nd Dept 1996] ; see also S & M Supply Inc. v. GEICO Ins. Co., 2003 N.Y. Slip Op 51192[U][App Term, 2nd & 11th Jud Dists 2003] ).Consequently, it does not demonstrate that the verification requests to plaintiff were inside the envelopes taken by the defendant's mailing clerk to the U .S. Post Office in the afternoon. In addition, there is no affidavit from an employee mail clerk attesting to the actual mailing of the verification requests. The Court also notes the lack of any certificates of mailing signed and stamped by an employee of the U.S. Postal Service to confirm the...
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