Medalliance Med. Health Servs. v. Travelers Prop. Cas. Ins. Co.
| Decision Date | 30 June 2021 |
| Docket Number | CV-1909-18/SM |
| Citation | 149 N.Y.S.3d 882 (Table),72 Misc.3d 1213 (A) |
| Parties | MEDALLIANCE MEDICAL HEALTH SERVICES, a/a/o Pearl Haye, Plaintiff, v. TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, Defendant. |
| Court | New York District Court |
Upon the following papers numbered 1 to 19 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/Order to Show Cause and supporting papers 1,2,12 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 13,17 ; Replying Affidavits and supporting papers 18,19 ; Filed papers; Other exhibits: 3-11,14-16 ;(and after hearing counsel in support of and opposed to the motion), it is
ORDERED that the part of the motion by defendant seeking summary judgment of dismissal for the NF-3 claim forms with dates of service ("DOS") of 10/23/17, 10/25/17 through 11/08/17, and 11/14/17 through 11/17/17, for the respective amounts of $34.68, $41.04, $41.04, $41.04, $101.87, $41.04, $101.87, $101.87 and $92.98, in the total sum of $597.43 , upon the grounds of outstanding verification requests pursuant to 11 NYCRR 65-3.8(b)(3), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b).
Defendant's proof submitted in support of its motion to dismiss the aforementioned NF-3 claims based upon outstanding verification requests, also demonstrates it improperly mailed its verification requests to plaintiff provider at the wrong address. The aforementioned NF-3 proof of claim forms (defendant admits their receipt) clearly lists the Provider's name and address as being: Medalliance Medical Health Services, c/o Law Offices of Baker Sanders, 100 Garden City Plaza, Suite 500, Garden City, New York 11530. A copy of plaintiff's envelope received and kept by defendant with each of these NF-3 proof of claim forms (submitted as part of defendant's exhibits), shows a pre-printed return address of Baker Sanders LLC, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.
Moreover, each correspondence to defendant from plaintiff's health care provider occurred through its attorneys, Baker Sanders, LLC., whose letterhead clearly states the following: "For all Correspondence: 100 Garden City Plaza, Suite 500, Garden City, NY 11530."
Yet the address on defendant's verification requests for the aforementioned NF-3 claims, show they were mailed to: Medalliance Medical Health Services, Curtis Blumenthal, D.C., 100 Garden City Plaza, Suite 500, Garden City, New York 11530; Medalliance Medical Health Services, Ruchi Shah Pt, 100 Garden City Plaza, Suite 500, Garden City, NY 11530; Medalliance Medical Health Services, Lamercie Jean Jacques, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.
The verification requests were improperly addressed as they did not conform to the specific address provided by the plaintiff provider in its NF-3 notice of claim forms. There is no evidentiary proof submitted which indicates the plaintiff provider had offices at the address indicated on the verification letters. As a result, receipt of the verification letters cannot be presumed, and it may be inferred that the provider did not receive the verification request letters, which would therefore excuse any non-compliance thereof (see Celtic Med. P.C. v Progressive Ins. Co. , 194 Misc 2d 429 [Dist Ct, Nassau Cty 2002] ). Therefore, the Court finds that defendant has failed in its burden to make a prima facie showing of entitlement to summary judgment of dismissal, as a matter of law, with proof in admissible form sufficient to establish the lack of any material issues of fact, concerning the alleged mailing of verification requests to plaintiff provider (see Alvarez v Prospect Hospital , 68 NY2d 320,324 [1986] ; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Zuckerman v City of New York , 49 NY2d 557,562 [1980] ). Defendant has failed to demonstrate that it mailed verification request letters to the proper address provided by the plaintiff provider .
Defendant thereby failed to show that it properly tolled the 30 calendar days in which each claim must be paid or denied, from the date of receipt of the claim (see Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [a][1]), by making additional verification requests within 15 days from its receipt of each claim (see 11 NYCRR 65-3.5 [b]; NY & Presbyt. Hosp. v Allstate Ins. Co. , 30 AD3d 492, 493 [2nd Dept 2006] ), thereby making each claim overdue (see 11 NYCRR 65-3.8 [a][1]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , 16 AD3d 564 [2nd Dept 2005] ), and necessitating the denial of this part of defendant's motion for summary judgment of dismissal.
The Court also awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co. , 25 NY3d 498 [2015] ; St. Luke's Roosevelt Hospital v American Transit Ins. Co. , 1 AD3d 498 [2nd Dept 2003] ; Insurance Law § 5106[a] ); and it is further
ORDERED that the part of defendant's motion seeking summary judgment of dismissal for 10 NF-3 claim forms with dates of service ("DOS") of 11/14/17, 01/08/18, 03/26/18, 03/31/18, 04/18/18, 05/07/18, 07/14/18, 07/26/18 through 07/28/18, 08/09/18, and 08/24/18, for the respective sums of $41.04, $34.68, $111.80, $111.80, $111.80, $80.02, $111.80, $223.60, $111.80, and $111.80, for a total of $1,050.14 , on the grounds of non-receipt of the NF-3 billing after the medical services were allegedly rendered, as required within 45 days by 11 NYCRR 65-1.1(d), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b).
The Court determines that the affidavit of Brian Edejer, the supervisor of the mailing department of plaintiff's counsel, demonstrates his personal familiarity with and supervision over the standard office practices and procedures of his department, geared to insure the proper addressing and mailing of NF-3 no-fault claim forms to insurance carriers. He asserts that his review of the files and computer records of the mailing department made and kept in the regular and ordinary course of business for the instant matter, shows that the NF-3 claim forms and the cover letters from plaintiff's counsel's office, were delivered by plaintiff to the custody of the U.S. Postal Service, and have not been returned as undeliverable. He submits a stamped proof of mailing from the U.S. Postal Service for each of the 10 NF-3 claim forms, which confirm their receipt by the U.S. Postal Service, for mailing to defendant.
The Court also finds plaintiff has demonstrated it is entitled to the presumption of timely receipt by defendant of the 10 NF-3 claim forms, despite defendant's allegations of denial of receipt (see A.B. Medical Services, PLLC. v MVAIC , 6 Misc 3d 131 [A][App Term, 2nd & 11th Jud Dists 2005]), especially in light of the stamped proof of mailing for each claim from the U.S. Postal Service which remains unrefuted by defendant .
In the view of the Court, defendant's denial of receipt of the 10 NF-3 claim forms, and the statements of the general and customary standard office practices and procedures of defendant's mailing department for receipt of incoming mail, as supported by the affidavit of defendant's litigation examiner, Matthew Dunleavy, are insufficient (see S & M Supply Inc. v GEICO Ins. , 2003 NY Slip Op 51192 [App Term, 2nd & 11th Jud Dists] ; Amaze Med. Supply v Colonial Penn Ins. Co. , 3 Misc 3d 135[A][App Term, 2nd & 11th Jud Dists 2004] ), under the instant circumstances, to raise a triable issue of fact (see Matter of Fodor v Mena America Bank, N.A. , 34 AD3d 473 [2nd Dept 2006] ; Matter of State Farm Mut. Auto. Ins. Co. v Kankam , 3 AD3d 418 [2nd Dept 2006] ).
Therefore, since defendant has failed to demonstrate it paid or denied the 10 NF-3 claims in the total sum of $1,050.14, within 30 calendar days of receipt of each claim (see 11 NYCRR 65-3.8 [c]), or properly sought verification requests to toll the date within 15 days of receipt of each claim (see 11 NYCRR 65-3.5 [b]; NY & Presbyt. Hosp. v Allstate Ins. Co. , supra ; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. , supra ), each of the 10 NF-3 claims is overdue (see 11 NYCRR 65-3.8 [a][1]), and the part of defendant's motion for summary judgment of dismissal of the 10 NF-3 claims totaling $1,050.14, is denied.
The Court also awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co. , 25 NY3d 498 [2015] ; St. Luke's Roosevelt Hospital v American Transit Ins. Co. , 1 AD3d 498 [2nd Dept 2003] ; Insurance Law § 5106[a] ); and it is further
ORDERED that the part of defendant's motion for summary judgment dismissin...
To continue reading
Request your trial