Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co.

• Decision Date: 18 December 2013
• Citation: Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 2013 NY Slip Op 8430, 114 A.D.3d 33, 977 N.Y.S.2d 292 (N.Y. App. Div. 2013)
• Parties: VIVIANE ETIENNE MEDICAL CARE, P.C., as assignee of Alem Cardenas, appellant, v. COUNTRY–WIDE INS. CO., respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 33

977 N.Y.S.2d 292

2013 N.Y. Slip Op. 08430

VIVIANE ETIENNE MEDICAL CARE, P.C., as assignee of Alem Cardenas, appellant,

v.COUNTRY–WIDE INS. CO., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 18, 2013.

Tsirelman & Valerio, P.C., Long Island City, N.Y. (Max Valerio of counsel), for appellant.

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

RIVERA, J.P.

In this action by the plaintiff, a medical service provider, to recover first-party no-fault insurance benefits, this Court must address the issue of the plaintiff's burden of proof on a motion for summary judgment in such an action. Specifically, we consider whether, as an element of its prima facie burden, the plaintiff is required to establish the merits of its claim for payment. We conclude that, where, as here, a defendant insurer does not timely and properly deny a claim, the plaintiff is not required to make such a showing. We reaffirm the longstanding precedent that, in this context, the plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the prescribed statutory billing forms were mailed to and received by the defendant insurer, which failed to either pay or deny the claim within the prescribed 30–day period.

I. Factual and Procedural History

On June 20, 2004, Alem Cardenas allegedly sustained personal injuries as a result of an automobile accident. According to the plaintiff, on that date, there was an existing automobile liability insurance policy containing a New York State no-fault endorsement issued by the defendant. The plaintiff allegedly furnished medical services to Cardenas for injuries relating to the subject automobile accident. Cardenas assigned his right to receive no-fault benefits to the plaintiff.

By summons and verified complaint dated September 23, 2005, the plaintiff, as assignee of Cardenas, commenced the instant action to recover no-fault insurance benefits. The plaintiff asserts that (1) it timely submitted bills and claim forms to the defendant for the services it provided to Cardenas, together with proper verification, (2) the defendant did not timely deny or request additional verification, and (3) the claims remained unpaid and outstanding.

In its verified answer, dated March 6, 2006, the defendant asserted 28 affirmative defenses, including that the plaintiff failed to file bills in a timely fashion as prescribed by the New York State Comprehensive Motor Vehicle Reparations Act (Insurance Law article 51), the medical treatment provided was neither necessary nor “medically indicated,” and payment of the plaintiff's claims was not overdue because of the plaintiff's failure to submit to the defendant “proper proof of the fact and amount of the loss” as required by the Insurance Law.

A. The Plaintiff's Motion for Summary Judgment

By notice of motion dated September 2, 2008, the plaintiff moved, inter alia, for summary judgment on the complaint. In support thereof, the plaintiff attached a copy of the pleadings and a copy of an assignment of benefits form (NF–AOB), pursuant to which Cardenas assigned his no-fault benefits to the plaintiff. The plaintiff also attached eight NF–3 verification forms, used to establish proof of claim ( see11 NYCRR 65–1.1), to document the services allegedly provided by the plaintiff to Cardenas from June 22, 2004, through October 25, 2004, as well as the corresponding amounts for those services. Each NF–3 form has a stamped signature bearing “V Etienne M.D.” The plaintiff further attached seven mailing ledgers stamped by the United States Postal Service.

Additionally, the plaintiff submitted one NF–10 denial of claim form dated November 22, 2004, in which the defendant denied payment of one claim dated November 17, 2004, in the amount of $139. The reason proffered for the denial of that claim was: “Based on the results from the independent medical exam the claimant attended on 9/21/04, which were negative and stated that maximum medical improvement has been achieved, all no-fault benefits are denied as of 9/28/04.” In further support of its motion, the plaintiff proffered the affidavit of Roman Matatov, who described how the NF–3 verificationformswere generated and set forth the procedures for mailing them to the insurer. Matatov stated in his affidavit that he is the president of SUM Billing Corp. (hereinafter SUM Billing), a company that provides services such as verifying insurance coverage, billing, collecting overdue payments, providing information to insurers upon request, and assembling and preparing files for litigation. Matatov further stated: “I supervise the billing and collection relating to No–Fault bills, and I personally carry out mailing of the bills we create ” (emphasis added).

Matatov averred that SUM Billing enters into a “business arrangement” with its clients prior to providing services, pursuant to which the clients “are under a business duty to provide [SUM Billing] with the documentation necessary to create a bill, such as initial or intake reports, progress notes, test results and medical reports.” Matatov stated:

“These documents are created near the time in which the events therein described occurred; they are created in the course of the providers' business; and it is the providers' business to create these documents as evidence of the services they have rendered. I personally obtain these documents by visiting the providers we serve. The documents are then incorporated into my company's records, and we rely upon them and the information therein contained in the performance of our business.”

Matatov next described the methods utilized by SUM Billing to create a bill. He explained that SUM Billing would input information provided by its clients into custom-designed software. The software creates NF–3 forms by automatically filling in the statutorily required information.

Matatov then set forth his company's procedure for mailing the NF–3 form to the insurer, as follows:

“[ ] The mailing information of the insurer from which we seek reimbursement on behalf of our clients is automatically inserted on an NF–3 based on the insurer's name; the billing software also prints this information on the envelope. NF–3s are then printed and inserted into this envelope together with any other necessary document required by insurers or by the circumstances.

“[ ] All envelopes ready for mailing are placed in a box, which I personally take to the U.S. Post Office at least once a week or whenever otherwise necessary to respect the statutory deadlines. I retain sole responsibility for the mailing of the documents created by my corporation, and I personally inspect and verify the accuracy and completeness of every envelope set to leave the office ” (emphasis added).

Consistent with the procedures he outlined above, Matatov indicated that he mailed the aforementioned eight NF–3 bills to the defendant.

In further support of its motion, the plaintiff submitted the affirmation of its counsel, Gary Tsirelman, dated September 2, 2008. Tsirelman asserted in his affirmation that the plaintiff established, prima facie, its entitlement to judgment as a matter of law through the submission of the NF–3 forms, which included the fact and amounts of loss sustained, and by setting forth that the payment of the benefits were overdue. Tsirelman contended that the burden then shifted to the defendant. Tsirelman argued that the defendant would be precluded from raising any “non-coverage” defenses, since it could not show that it timely denied the claims pursuant to the no-fault regulatory scheme.

B. The Defendant's Opposition

In opposition to the plaintiff's motion, the defendant submitted the affirmation of its counsel, Jean Kang, dated January 6, 2009, in which Kang countered that the plaintiff had not established a prima facie case since “all of the plaintiff's exhibits are hearsay” and, in order for them to be in admissible form, they had to fall under one of the exceptions to the hearsay rule. Kang contended that Matatov's affidavit was insufficient to lay a foundation for the admission of the NF–3 forms under the business records exception to the hearsay rule. Kang asserted that “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception.”

Kang claimed that it was not possible to determine from Matatov's affidavit whether he had any familiarity with the plaintiff and its practices and procedures. Further, Kang argued that Matatov's affidavit failed to provide any specific information regarding the individual responsible for mailing the specific bills at issue to the defendant. Rather, according to Kang, Matatov's affidavit was “obviously a template, and fails to provide any specific information at all about the handling of the bill(s) in question, merely providing generalized details about [the] plaintiff's office practices.” Kang concluded that there can be no presumption of mailing by merely making a list of claimants and dates that the claims were purportedly mailed.

C. The Orders of the Civil Court and the Appellate Term

By order entered March 6, 2009, the Civil Court, Kings County, denied that branch of the plaintiff's motion which was for summary judgment on the complaint “for failure to establish a prima facie case.”

By notice of appeal dated April 3, 2009, the plaintiff appealed to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts. By order dated February 1, 2011, the Appellate Term affirmed the Civil Court order ( see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 31 Misc.3d 21, ...