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

CourtNew York Court of Appeals
Writing for the CourtABDUS–SALAAM, J.
PartiesVIVIANE ETIENNE MEDICAL CARE, P.C., as Assignee of Alem Cardenas, Respondent, v. COUNTRY–WIDE INS. CO., Appellant.
Decision Date10 June 2015

25 N.Y.3d 498
35 N.E.3d 451
14 N.Y.S.3d 283
2015 N.Y. Slip Op. 04787

VIVIANE ETIENNE MEDICAL CARE, P.C., as Assignee of Alem Cardenas, Respondent
v.
COUNTRY–WIDE INS.
CO., Appellant.

Court of Appeals of New York.

June 10, 2015.


14 N.Y.S.3d 285

Thomas A. Torto, New York City, and Jaffe & Koumourdas, LLP, New York City, for appellant.

14 N.Y.S.3d 286

Gary Tsirelman, P.C., Brooklyn (David M. Gottlieb, Gary Tsirelman and Stefan M. Belinfanti of counsel), for respondent.

Short & Billy, PC, New York City (Gregory Guido and Skip Short of counsel), for American Transit Insurance Company and others, amici curiae.

OPINION OF THE COURT

ABDUS–SALAAM, J.

35 N.E.3d 454
25 N.Y.3d 501

This appeal requires us to determine what proof a plaintiff medical provider must advance to make a prima facie showing of entitlement to summary judgment in a no-fault insurance action. We hold that a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. Proof evincing the mailing must be presented in admissible form, including, where it is applicable, meeting the business records exception to the hearsay rule. Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative.

I.

Following an automobile accident in June 2004, Alem Cardenas received treatment for his injuries at the office of plaintiff Viviane Etienne Medical Care, P.C. Cardenas's automobile liability insurance policy with defendant Country–Wide Insurance Company contained a New York State no-fault endorsement. Cardenas assigned his right to receive no-fault benefits to plaintiff. To receive reimbursement for the services it rendered to Cardenas, plaintiff submitted to defendant eight verification of treatment forms1 demonstrating the services rendered or equipment provided, and the corresponding cost. Each form was signature stamped with “V Etienne MD.” Within 15 days from receipt of the verification of treatment form, an insurer may seek further verification (see 11 NYCRR 65–3.5 [b] ) and within 30 days after receiving the verification of treatment form, the insurer must pay or deny the claim (see Insurance Law § 5106[a] ; 11 NYCRR 65–3.8 [c] ). Defendant denied payment on one claim in the amount of $139 dated November 17, 2004. Defendant did not respond to any of the other claims.

Plaintiff commenced this action seeking to recover no-fault insurance benefits, asserting that it timely submitted bills and

25 N.Y.3d 502

claims for payment to defendant in the amount of $6,130.70,2 but defendant had yet to make any payments, deny the requests, or ask for verification of the claims. Plaintiff also requested interest and attorney's fees under the Insurance Law. Defendant answered and asserted as an affirmative defense that payment for plaintiff's claims was not overdue because plaintiff failed to submit “proper proof of the fact and amount of loss” as required by the Insurance Law.

Plaintiff moved for summary judgment on its claims, arguing that it had met its prima facie burden of showing the fact and amount of loss sustained, and that the

35 N.E.3d 455
14 N.Y.S.3d 287

payment of the benefits was overdue. As support, plaintiff submitted the aforementioned eight verification of treatment forms as proof of claim, along with seven mailing ledgers stamped by the United States Postal Service indicating the date the forms were mailed, and the denial of claim form. Additionally, plaintiff submitted the affidavit of Roman Matatov, President of SUM Billing Corp. (SUM Billing), a third-party billing company hired by plaintiff.

In the affidavit, Matatov explained the company's billing procedures. The medical providers must submit an assignment of benefits form signed by the injured party along with the injured party's identification prior to SUM Billing sending out the verification of treatment forms to the insurance companies for reimbursement. Matatov personally obtains the insurance cards and police reports pertaining to the accident. He incorporates all the above documents into SUM Billing's records and relies upon them in the performance of his business. In generating the verification of treatment forms, Matatov requires the medical providers to submit to SUM Billing all information necessary to complete the forms and sees that any missing information is obtained from the providers. Matatov then enters all the information to be included in the verification of treatment form into a custom-designed software system that creates the completed forms. Matatov averred that after the forms are created, he logs the bills into a mailing ledger, and personally mails the bills to the insurance company. The mailing ledger is stamped by the United States Postal Service. Matatov stated that he “retain[s] sole responsibility for the mailing of the documents created by [SUM Billing], and [he]

25 N.Y.3d 503

personally inspect[s] and verif[ies] the accuracy and completeness of every envelope set to leave the office.” The affidavit also described the eight proof of claim forms that plaintiff submitted with its motion for summary judgment. Matatov affirmed that consistent with the described procedures, he mailed the eight proof of claim forms to defendant.

Defendant opposed the motion, arguing that plaintiff failed to meet its prima facie burden as it did not put forth evidence in admissible form, because all of plaintiff's exhibits were hearsay with no applicable exception. It asserted that Matatov's affidavit did not provide sufficient foundation for the admission of the hearsay under the business records exception because the affidavit “merely state[d] the bills were mailed” but gave no other details required to meet the business records exception under CPLR 4518(a).

Civil Court denied plaintiff's motion for summary judgment “for failure to establish a prima facie case.” The Appellate Term, for the Second, Eleventh and Thirteenth Districts, affirmed (31 Misc.3d 21, 919 N.Y.S.2d 759 [2011] ). Relying on the Second Department's decision in Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 A.D.3d 644, 864 N.Y.S.2d 792 (2d Dept.2008), the Appellate Term held that Matatov's affidavit failed to lay a sufficient foundation for the business records hearsay exception. Specifically, the court stated that the “affidavit failed to demonstrate that [Matatov] ha[d] personal knowledge of plaintiff's practices and procedures and that he [was] competent to testify about those practices and procedures” and alternatively failed to demonstrate that SUM Billing “incorporated plaintiff's medical records into its own and relied upon them” (31 Misc.3d at 24, 25, 919 N.Y.S.2d 759 ).

Insofar as relevant here, the Appellate Division, with two Justices dissenting, granted plaintiff's motion for summary judgment with respect to all the claims

35 N.E.3d 456
14 N.Y.S.3d 288

that were not timely denied by the insurer (114 A.D.3d 33, 977 N.Y.S.2d 292 [2013] ).3 The Court declined to follow its decision in Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 A.D.3d 644, 864 N.Y.S.2d 792 (2d Dept.2008), wherein it held that the plaintiffs there “failed to establish their prima facie entitlement to judgment as a matter of law” because “[t]he plaintiffs' medical service providers failed to demonstrate the admissibility of their billing records under the

25 N.Y.3d 504

business records exception to the hearsay rule” (id. at 644, 864 N.Y.S.2d 792 ). The Court concluded that Art of Healing constitutes an anomaly, a jurisprudential drift from [the] Court's well-established precedent” (114 A.D.3d at 44, 45, 977 N.Y.S.2d 292 ).4

The Court stated:

“We reaffirm the long-standing 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” (114 A.D.3d at 35, 977 N.Y.S.2d 292 ).

Applying that standard, the Appellate Division determined that, with the exception of the claim that was denied, plaintiff established prima facie entitlement to summary judgment as a matter of law “by demonstrating that its prescribed statutory billing forms used to establish proof of claim were mailed to and received by the...

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118 practice notes
  • Bank of N.Y. Mellon v. Gordon, 2015–10709
    • United States
    • New York Supreme Court Appellate Division
    • March 27, 2019
    ...entitlement to summary judgment by submission of proof in admissible form" ( Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 507, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Admissible e......
  • Bank of N.Y. v. Morga
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2017
    ...the rule against hearsay under CPLR 4518" and cites to various cases, including Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 (2015)which affd. 114 A.D.3d 33, 977 N.Y.S.2d 292 (2d Dept.2013).The Second Department holding in Vivi......
  • Deutsche Bank Nat'l Trust Co. v. Dennis, 2016–10408
    • United States
    • New York Supreme Court Appellate Division
    • March 25, 2020
    ..., 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co. , 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; 181 A.D.3d 867 Bank of Am., N.A. v. Bittle , 168 A.D.3d 656, 658, 91 N.Y.S.3d 234 ; Wells Fargo ......
  • HSBC Bank USA, Nat'l Ass'n v. Ozcan
    • United States
    • New York Supreme Court Appellate Division
    • October 18, 2017
    ...of the business records exception to the hearsay rule under CPLR 4518 (see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; CitiMortgage, Inc. v. Pappas, 147 A.D.3d 900, 901, 47 N.Y.S.3d 415 ). Here, in support of its motion for ......
  • Request a trial to view additional results
119 cases
  • Bank of N.Y. Mellon v. Gordon, 2015–10709
    • United States
    • New York Supreme Court Appellate Division
    • March 27, 2019
    ...entitlement to summary judgment by submission of proof in admissible form" ( Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 507, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Admissible e......
  • Bank of N.Y. v. Morga
    • United States
    • United States State Supreme Court (New York)
    • March 9, 2017
    ...the rule against hearsay under CPLR 4518" and cites to various cases, including Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 (2015)which affd. 114 A.D.3d 33, 977 N.Y.S.2d 292 (2d Dept.2013).The Second Department holding in Vivi......
  • Deutsche Bank Nat'l Trust Co. v. Dennis, 2016–10408
    • United States
    • New York Supreme Court Appellate Division
    • March 25, 2020
    ..., 172 A.D.3d at 20–21, 98 N.Y.S.3d 273 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co. , 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; 181 A.D.3d 867 Bank of Am., N.A. v. Bittle , 168 A.D.3d 656, 658, 91 N.Y.S.3d 234 ; Wells Fargo ......
  • HSBC Bank USA, Nat'l Ass'n v. Ozcan
    • United States
    • New York Supreme Court Appellate Division
    • October 18, 2017
    ...of the business records exception to the hearsay rule under CPLR 4518 (see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; CitiMortgage, Inc. v. Pappas, 147 A.D.3d 900, 901, 47 N.Y.S.3d 415 ). Here, in support of its motion for ......
  • Request a trial to view additional results

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