SB Chiropractic, P.C. v. GEICO Ins. Co., 2022-50316

CourtNew York Civil Court
Writing for the CourtHEELA D. CAPELL, J.
PartiesSB Chiropractic, P.C., a/a/o RIVERA, EDDIE, Plaintiff, v. GEICO Ins. Co., Defendant.
Docket Number2022-50316
Decision Date20 April 2022

SB Chiropractic, P.C., a/a/o RIVERA, EDDIE, Plaintiff,

GEICO Ins. Co., Defendant.

No. 2022-50316

Civil Court of the City of New York, Kings County

April 20, 2022

Unpublished Opinion

Attorney for Petitioner: Oleg Rybak, Esq. The Rybak Firm, PLLC

Attorney for Respondent: Lola Klis, Esq.Law Office of Goldstein, Flecker & Hopkins 2 Huntington Quadrangle


Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment, numbered as they appear on EDDS.

Papers Numbered

Notice of Motion, Affidavits & Exhibits Annexed

Notice of Cross Motion, Affirmation in Opposition, Affidavits & Exhibits Annexed

Affirmation in Reply




After argument, Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment are consolidated for disposition purposes only and decided jointly as follows:

In this action seeking assigned no-fault benefits, SB Chiropractic, P.C. a/a/o Rivera, Eddie ("Plaintiff") seeks summary judgment against Geico Insurance Co. ("Defendant"), or in the alternative, an order limiting the issues of fact for trial and dismissing Defendant's affirmative defenses. Defendant opposes the motion and cross-moves for summary judgment in its favor.

Plaintiff alleges that it provided medical care to Eddie Rivera ("Assignor") from July, 2017 through April 2018 after a July 9, 2017 automobile accident. It is undisputed that Plaintiff sent ten bills to the Defendant insurance carrier for this medical care (Plaintiff's Motion Ex. 3). Each bill includes a list of dates when care was provided, a Current Procedural Terminology code ("CPT") designated by the Worker's Compensation Fee Schedule ("WCFS") to be used for the procedure or procedures that were performed on that date, and a monetary amount billed. (Id.) The amount billed is derived from the multiplication of the Relative Value Unit ("RVU") which is assigned to the CPT code by a conversion factor based upon where in New York State the services were rendered (see Renelique v Am. Tr. Ins. Co., 53 Misc.3d 141 [A], [App Term 2016]) [1].

Defendant asserts that it partially paid or denied each of these bills, by sending Plaintiff"Denial of Claim forms" within 30 days of receipt (11 NYCRR 65-3.8[c]; see Defendant's Ex C). Each Denial of Claim form includes the amount Defendant reimbursed the Plaintiff for each date of service, along with a note explaining the reasons for any reduction in reimbursement from the amount requested (Defendant's Ex. C). Defendant's cross-motion contains both an affirmation and an affidavit from a "Claims Representative," which explain the computations utilized for each reimbursement, partial reimbursement, and denial (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc.3d 142 [A], [App Term 2017]).

Plaintiff argues that it is entitled to summary judgment because it submitted claim forms to the Defendant, Defendant failed to issue a timely denial of claim form and/or the form was conclusory, vague, or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 934 N.Y.2d 32, 2011 [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011], Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 N.Y.3d 498, 501, [2015]["A plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer"]). Defendant argues that it properly and timely mailed Denial of Claim forms, and that each partial payment or denial was proper. Therefore, the issue is whether Defendant's denials are sufficient to defeat Plaintiff's motion for summary judgment, and whether they entitle Defendant to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 934 N.Y.2d 32, [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011]). [2]

The standard for summary judgment is clearly articulated in CPLR § 3212(b) which provides that "the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1985]).

In order to succeed on its motion, Defendant must establish that it mailed the Denial of Claim forms within 30 days of receiving Plaintiff's bills. To establish that denial of claim forms were mailed on time, the insurance company may rely upon the affidavit of a claims associate. Proof of mailing may be shown based on a mailing receipt, or, that the item was mailed pursuant to the affiant's standard office practices and procedures (GL v Allstate Ins. Co., 2018 NY Slip Op 50842[U] [2d Dept 2018]). The claim representative must demonstrate, through an affidavit, knowledge of the insurance company's standard office practices or procedures, and that the items were properly addressed and mailed pursuant to these practices or procedures (St. Vincent's Hosp. of Richmond v Govt. Empls. Ins. Co., 50 A.D.3d 1123 [2d Dept 2008]). Crucially, an insurer's non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim (11 NYCRR 65-3.8[h]). Proof of a standard office practice and procedure gives rise to a presumption of mailing and receipt (Cit Bank N.A. v Schiffman, 36 N.Y.3d 550 [2021]). To rebut the presumption,

"[T]here must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient" (Id.)

Defendant attaches to its cross-motion an affidavit from Cleone Victor, ("Victor Affidavit") who avers that they are a "claims associate" in Defendant's Woodbury, New York, office (Defendant's Cross Ex. B). The Victor Affidavit recounts, in detail, Defendant's standard office procedures for mailing and processing bills, that Plaintiff's bills were processed according to these procedures, and that Denial of Claim Forms were processed according to these procedures. Cleone Victor describes Defendant's application of the ATLAS Claim System to process bills and denials like the ones submitted by Plaintiff here (Defendant's Cross Ex. B) and how the system is designed to ensure that the denials arrive to the Defendant within the required time.

Plaintiff argues that the Victor Affidavit is insufficient because it fails to lay a proper foundation for Victor's knowledge of Defendant's mailing processes. But, Plaintiff's objections are mainly technical, grammatical arguments rather than based on merit, and, Plaintiff misstates the Victor Affidavit multiple times; Plaintiff argues that Cleone Victor "never asserts that she has knowledge of what procedures were in place at the time mailing purportedly occurred" and that "Victor states that she has been employed by Geico in the Woodbury, New York office since on or about January 1995" (Plaintiff's Aff in Opp., 72). The Victor Affidavit, however, clearly states: "[t]he procedures described in this affidavit were in place and were utilized by GEICO in the Woodbury Office at the time that the documents relating to this matter were created, printed and mailed" and, "I have been employed by GEICO in the Woodbury, New York office since on or about June 2005" (Defendant's Cross Ex. B). Plaintiff's remaining arguments similarly lack a factual basis necessary to rebut...

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