Quality Psychological Servs., P.C. v. Hartford Ins. Co.

• Decision Date: 15 January 2013
• Docket Number: No. 99743/09.,99743/09.
• Parties: QUALITY PSYCHOLOGICAL SERVICES, P.C. a/a/o Justas Kalvaitis, Plaintiff, v. HARTFORD INSURANCE COMPANY, Defendant.
• Court: New York Civil Court

38 Misc.3d 1210

966 N.Y.S.2d 349

2013 N.Y. Slip Op. 50045

QUALITY PSYCHOLOGICAL SERVICES, P.C. a/a/o Justas Kalvaitis, Plaintiff,

v.HARTFORD INSURANCE COMPANY, Defendant.

No. 99743/09.

Civil Court, City of New York,

Kings County.

Jan. 15, 2013.

Law Offices of Melissa Betancourt Brooklyn, Attorneys for Plaintiff Quality Psychological Services.

Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, Attorneys for Defendant Hartford Insurance Company.

HARRIET THOMPSON, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on 2/15/12,

DECISION/ORDER

Recitation, as required by CPLR § 2219(a), of the papers

considered in the review of this Motion

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                ¦Notice of Motion                          ¦1–2; 3–4  ¦
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                ¦Order to Show Cause and Affidavits Annexed¦____________  ¦
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                ¦Answering Affidavits                      ¦–––– 5 ––––   ¦
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                ¦Replying Affidavits                       ¦––– 6 ––––    ¦
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                ¦Exhibits                                  ¦____________  ¦
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PROCEDURAL HISTORY This Civil Court action was commenced in or about September 21, 2009, by the service of a Summons and Endorsed Complaint to recover first-party No–Fault benefits as a result of alleged injuries arising out of an automobile accident which occurred on July 25, 2008. In or about November 17, 2009, the Defendant interposed a Verified Answer which contained various applicable and inapplicable affirmative defenses.

The Defendant moves this Court for summary judgment pursuant to CPLR § 3212 by Notice of Motion returnable on August 16, 2011 on the grounds that the Plaintiff failed to submit to two properly scheduled Examinations Under Oath (hereinafter “EUO”), a condition precedent to insurance coverage and a violation of the Insurance regulations, precluding recovery of the medical claim. On the return date, the attorneys, by written agreement, adjourned the motion to February 15, 2012 for the parties to engage in motion practice.

The Plaintiff, in opposition, attacks the admissibility and credibility of the Defendant's affidavits. The Plaintiff seeks to persuade this court that the certificate of conformity affirmed by ALAN CHANDLER, ESQ. does not contain the language “under the penalties of perjury” pursuant to CPLR § 2106 and therefore, is inadmissible. The Plaintiff also argues that the out-of-state affidavit of NANCY ALPIZAR is missing a certificate of conformity altogether and is void as a matter of law. Additionally, Plaintiff argues that the affidavits do not establish proper and timely mailing of the EUO notices and denials since it contains various factual discrepancies. The Plaintiff also argues that the Defendant failed to establish that EUO requests were properly mailed since the certified mail return receipts are absent from the motion; the Defendant failed to schedule the EUO's in the county where the Plaintiff resides and therefore, it is palpably improper; and 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.

In reply, and in further support of the Defendant's motion for summary judgment, the Defendant challenges the Plaintiff's argument that the certificate of conformity of ALAN CHANDLER, ESQ. is defective for failure to swear “under the penalties of perjury” pursuant to CPLR § 2106 and asserts that the certificates of conformity for the out-of-state affidavits are proper. The Defendant further reiterates that the affidavits of the Defendant's Claims Representative and the Defendant's Mailing Courier Representative are sufficient to establish the timely mailing of EUO letters and denials of the claim (NF–10) and lastly, argues that the request for a specific witness affiliated with the Plaintiff (Dr. Herbert Fischer, Ph. D., the treating physician) to appear for the EUO outside of the Plaintiff's county was waived due the lack of any objections to the requests.

The Plaintiff, by Notice of Cross Motion, returnable on February 15, 2012, also seeks summary judgment. The Plaintiff contends that it has established its prima facie case through the submission of the proper proof of claim in the form of a health care services application (NF–3) that was properly generated and timely mailed to the Defendant in the ordinary course of business, the claim was received by the Defendant and the Defendant failed to make payment within thirty (30) days of receipt as required by No–Fault Insurance Law and regulations or to take any action to properly toll the time constraints imposed by 11 NYCCRR § 65.

Both parties appeared by their attorneys and after oral argument, this Court reserved decision for a final disposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following facts are uncontroverted. Justas Kalvaitis was treated by the above named Plaintiff for alleged injuries between August 26, 2008 and September 29, 2008 for the total sum of $1,341.14. The bills for the above services were received by the Defendant on September 29, 2008.

In order to establish its prima facie case, the Plaintiff must prove that the proper notice of claim for the medical services provided to the assignor was 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, 774 N.Y.S.2d 564 (2nd Dept., 2004) [plaintiff hospital made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue]; see also Westchester Med. Center v. Liberty Mutual Ins. Co., 40 AD3d 981, 837 N.Y.S.2d 210 (2nd Dept.-, 2007); Insurance Law 5106(a).

The No–Fault Law requires the insurance carrier to either pay or deny the claim for No–Fault benefits within thirty (30) days from the date of receipt of the claim. Insurance Law, § 5106(a); 11 NYCRR § 65.15(g)(3). Within ten (10) business days after the receipt of the NF–2, the insurer must send verification forms to the insured or the provider. In the regulations, after receipt of the completed verification, the insurer may seek “additional verification” or further proof of claim from the insured or assignee within fifteen (15) days thereof. 11 NYCRR 65 § 3.5(b). The insurer may seek additional verification in the form of an independent medical examination (IME) within thirty (30) days from the date of the initial medical bills (11 NYCRR65.3.5(d)), or as in this case, if the insurer requires an EUO of the insured or provider to establish such proof of claim, the EUO must be based upon “the application of objective standards so that there is specific objective justification supporting the use of such examination”. Such standards are subject to review by the Insurance Department. 11 NYCRR § 65–3.5(e). The regulations direct that the insured or provider be informed that the use of either the IME or EUO by the insurer require the insurer to reimburse the affected party for “any loss of earnings and reasonable transportation expenses.”

If any additional verification has not been provided to the insurer within 30 calendar days after the original request, the insurer shall, within ten (10) calendar days, “follow-up” with the noncompliant party by either telephone call or by mail. 11 NYCRR § 65.3.6(b). At that time, the insurer must notify the claimant or their representative of the basis for the delay of the claim by “identifying, in writing, the missing verification and the party from whom it was requested.”

The prescribed thirty (30) day time line to pay or deny a claim is tolled until the insurer has received proper verification of all relevant information requested of the injured party or provider. 11 NYCRR 65.15(d), (g), (7); St. Vincent Hospital of Richmond v. American Tr. Ins. Co., 299 A.D.2d 338, 750 N.Y.S.2d 98 (N.Y. A.D., 2002). The burden does not shift to the insurer to pay or deny the claim until the required party has complied with the verification request.

Of course, in reality, the insurer does not always act timely. In this judicial department, the Appellate Division in Keith v. Liberty Mutual Fire Ins. Co., 118 A.D.2d 151, 503 N.Y.S.2d 441 (1986) determined that 11 NYCRR 65.3.8(j), which describes the process of deviation from the rules which reduces the thirty calendar days for regulatory noncompliance, that “[a]lthough the clock does not begin to run on the thirty-day calendar requirement until the insurer receives all of the necessary verification ... the insurer's lack of diligence in obtaining the verification may reduce the thirty-day period even before verification is obtained. In that case, the insurer was four business days late in requesting the verification and thus, the insurer's thirty-day calendar days to pay or deny the claim must be reduced by four days, leaving 26 days.”

According to Judge Hagler, in Inwood Hill Med v. Allstate, 3 Misc.3d 1110(A), 787 N.Y.S.2d 678 (N.Y. Civ.Ct., 2004), a thorough and excellent analysis of the No–Fault regulations, the thirty (30) day rule does not apply to requests for additional verification within the prescribed time frame and this court concurs. He states that “the inconsistency may be resolved by stating that the insurer's time is not reduced where it sought the...