Opinion
000930/07.
Decided December 31, 2007.
Joseph Henig, PC, Bellmore, NY, Plaintiffs Attorney.
Martin Fallon Mulle, New York, NY, Defendants Attorney.
Plaintiffs move this Court for an order pursuant to CPLR § 3212, granting Summary Judgment in their favor. Defendant opposes the requested relief and asks the Court, pursuant to CPLR § 3212(b), to grant Summary Judgment in its favor or, in the alternative, grant a hearing to determine the amount to which they are entitled.
To establish a prima facie entitlement to summary judgment as a matter of law, the plaintiff hospital is required to submit evidentiary proof that the prescribed billing forms were mailed and received, and that payment of no fault benefits is overdue. Insurance Law § 5106(a); 11 N.Y.C.R.R. 65.15(g)(3); ( Mount Sinai Hospital v. Joan Service Corp ., 22 AD3d 649, 803 NYS2d 102 (2nd Dept., 2005), citing Mary Immaculate Hosp. v. Allstate Ins. Co. , 5 AD3d 742, 743, 774 NYS2d 564 (2nd Dept., 2004); St. Luke's Roosevelt Hosp. v. American Transit Ins. Co. , 1 AD3d 498, 767 NYS2d 252 (2nd Dept., 2003); St. Luke's Roosevelt Hosp. v. Allstate Ins. Co. , 303 AD2d 743, 757 NYS2d 457 (2nd Dept., 2003); New York and Presbyterian Hospital v. Allstate Ins. Co. , 295 AD2d 412, 743 NYS2d 733 (2nd Dept., 2002). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the Defendant. (See Makaj v. Metropolitan Transportation Authority , 18 AD3d 625, 796 NYS2d 621 [2nd Dept., 2005]).
With respect to Plaintiff St. Vincent's Hospital of Richmond, a/a/o Ednita Lorenzo, it is undisputed that Ms. Lorenzo was admitted to the hospital on December 19, 2005 and discharged on December 30, 2005. Defendant has not challenged that the NYS Form NF-5 was mailed on October 27, 2006 and received by them on October 30, 2006. According to the August 9, 2007 affidavit of Susan Weinstein, a biller and account representative for Hospital Receivable Systems, Inc., a defective denial of claim form dated November 14, 2006 was issued, containing an incorrect amount of the bill and the amount in dispute. It is also undisputed that on November 27, 2006 Defendant paid the claim in the amount of $9,913.37. There is a dispute as to an unpaid balance of $13,349.21, plus statutory interest and attorney's fees.It is Defendant's position, supported by the Affidavit of Gina Pisano, Claim representative for Defendant, that they sent a proper partial denial of the claim, for bills in excess of $9,913.37, as the charges were in excess of the proper no fault fee schedule. There is no dispute that the partial denial was sent in a timely fashion.
Simultaneous with Defendant making payment in the amount of $9,913.37, a second check in the same amount was sent to Plaintiff and cashed. Defendant argues that this was a clerical error and seeks a judgment in its favor for this amount. In the alternative, Defendant seeks a hearing to determine the proper fee for the services rendered by it under the New York no fault fee schedule. Plaintiff does not address the alleged over payment in its opposition papers.
It is undisputed that the denial was sent in a timely fashion. This Court finds a question of fact exists with respect to whether or not the fees charged were in excess of the Workers' Compensation fee schedule. (See A.B. Med. Servs., PLLC v. American Tr. Ins. Co. , 15 Misc 3d 132 (A), 839 NYS2d 431 (App. Term 2d 11th Judicial Dists., 2007); see also Robert Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co. 13 Misc 3d 172, 822 NYS2d 378 (Civil Ct., City of NY, 2006) [The Workers' Compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for No-Fault benefits.]) A hearing is necessary to determine how much should have been billed. While there was no opposition to Defendant's cross motion with respect to the payment of $9,913.37, questions of fact exist with respect to the amount due, which will be resolved at the hearing. Summary judgment is therefore denied to both parties.
This matter is referred to the Calendar Control Part (CCP), for a hearing to be held on February 28, 2008 at 9:30 a.m. . The Plaintiff shall file and serve a Note of Issue, together with a copy of this Order, on all parties and shall serve copies of same, together with receipt of payment, upon the Calendar Clerk of this Court within twenty (20) days of the date of this Order. The directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer, or a Court Attorney/Referee, as he or she deems appropriate.
With respect to the cause of action on behalf of Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, Plaintiff alleges that these actions are joined as they are covered under a uniform policy of insurance and involve the interpretation of the same provisions of the Insurance Law. However, no policy was attached to the instant motion and there is nothing before this Court to show any connection between the Plaintiffs or their claims.
CPLR § 1002(a) provides for a permissive joinder of Plaintiffs where they "assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences . . . if any common question of law or fact would arise." While it is true that the same sections of the Insurance Law are applicable in the instant action, Plaintiffs have failed to satisfy the first prong of CPLR § 1002(a).
The Court sua sponte severs the Second Cause of Action and grants leave to Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, to purchase an Index Number and proceed separately on the Cause of Action against State Farm Mutual Automobile Insurance Company. ( Mount Sinai Hospital v. MVAIC , 291 AD2d 536, 738 NYS2d 247 [2nd Dept., 2002]). Severance is a matter of judicial discretion based upon a weighing of all the circumstances in a particular case. The First and Second Causes of Action herein are completely unrelated in time, place, party and circumstance.
The foregoing constitutes the Order of this Court.