Opinion
Index No. CV-706250-20/RI
03-22-2022
KOLB RADIOLOGY, P.C. a/a/o Claudia Walker, Plaintiff, v. HEREFORD INSURANCE COMPANY, Defendant.
Rizzo Law Group, PLLC, P.C. for Plaintiff; The Law Offices of Rubin & Nazarian for Defendant
Rizzo Law Group, PLLC, P.C. for Plaintiff;
The Law Offices of Rubin & Nazarian for Defendant
Robert J. Helbock Jr., J. The decision on Defendant's Motion for Summary Judgment is as follows:
Plaintiff, Kolb Radiology, P.C. (hereinafter, "Plaintiff"), as assignee of Claudia Walker (hereinafter, "Assignor"), commenced this action against the defendant, Hereford Insurance Company (hereinafter, "Defendant"), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor in the amount of $1,791.73.
Currently before the Court is Defendant's motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing Plaintiff's complaint as premature in that there are outstanding responses to Defendant's verification requests. By way of a cross-motion, Plaintiff submitted opposition to Defendant's motion. Defendant filed an affirmation in further support to its motion and in opposition to Plaintiff's cross-motion The motion was argued before the undersigned February 17, 2022 and submitted for decision.
Defendant moves for summary judgment dismissing Plaintiff's complaint on the grounds that Defendant established its prima facie case in that Plaintiff's claim is premature as responses are outstanding to Defendant's verification requests. Plaintiff argues that its response to Defendant's request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment. A motion for summary judgment should be granted if "upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties." ( CPLR 3212 ). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues ( Chiara v. Town of New Castle , 126 A.D.3d 111, 125, 2 N.Y.S.3d 132 [2d Dept. 2015], citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc. , 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341 [1966] ). The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City. The Plaintiff performed an MRI that was billed and submitted to the Defendant pursuant to the No-Fault Insurance Regulations and subject to the applicable Fee Schedule. The Defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The Plaintiff responded to the verification demands but did not supply the MRI films requested by the Defendant. Instead, the Plaintiff demanded the payment of a $5.00 fee, as provided in Ground Rule 8 of the Workers’ Compensation Fee Schedule. The Defendant replied to Plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this Court.
A thorough search finds the issue first arose in June 2021 between the same attorneys for the parties herein in the matter of Lenox Hill Radiology and MIA, P.C. v. Hereford Ins. Co. (72 Misc. 3d 702, 150 N.Y.S.3d 214 [Civ. Ct. 2021] ).
The No-Fault Insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the Plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the Defendant to pay for necessary heath care pursuant to the Fee Schedule. Similarly, the Plaintiff should have provided the films requested by the Defendant and then billed Defendant the statutory costs of $5.00. Instead, the Plaintiff refused to provide the MRI films until it received the $5.00 from Defendant. That act appears to this Court to be more shortsighted than productive.
Conversely, the Defendant received the demand for $5.00 and instead of promising or making payment of the $5.00, the Defendant responded that the Plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received ( 11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. at 65-3.5; Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553, 692 N.Y.S.2d 665 [Dept. 1999].
What concerns the Court is that the Defendant's response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the dispute that was delaying the Plaintiff's compliance with the verification request.
For guidance, the Court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (No. 08-05-08) entitled "Reproduction Cost of a Magnetic Resonance Imaging ("MRI") Film Necessary to Verify a No-Fault Insurance Claim." That opinion directs that if the original MRI films are provided to the Insurance Company, then there is no charge. If a copy is provided to the Insurance Company, then the Insurance Company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the Insurance Company would have to receive the reproduced MRI films first before payment would be made.
In this instance, the Defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to Plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the Fee Schedule.
Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the Defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.
Therefore, the Defendant's motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff's cross-motion is denied without prejudice as moot.
The foregoing constitutes the Decision and Order of the Court.