Opinion
Index No: 706841/16
06-08-2021
ALSAAD MEDICAL, P.C., Assignee of Petronila Colon-Chavez, Plaintiff(s), v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant(s).
Plaintiff's Counsel: Law Offices of Gabriel Shapiro, LLC Defendant's Counsel: Bruno, Gerbino & Soriano, LLP
Plaintiff's Counsel: Law Offices of Gabriel Shapiro, LLC
Defendant's Counsel: Bruno, Gerbino & Soriano, LLP
Fidel E. Gomez, J.
In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Defendant avers that because plaintiff failed to appear for two Examinations Under Oath (EUOs), it properly denied plaintiff's claims for medical services rendered to its assignor PATRONITA COLON-CHAVEZ (Colon-Chavez) under the no-fault portion of its insured's policy. Plaintiff opposes the instant motion, asserting that defendant fails to establish prima facie entitlement to summary judgment because the notices scheduling the EUOs, which sought certain documents, were defective, such that the plaintiff had no obligation to attend the EUOs. Plaintiff also argues that its own submissions, indicating that it objected to the EUOs, obviated the need to appear. Plaintiff also cross-moves for an order granting it summary judgment on grounds that more than 30 days have elapsed since it submitted its claims and defendant has failed to pay them. Defendant opposes plaintiff's cross-motion for the same reasons defendant seeks summary judgment in its favor - that its denial of plaintiff's claims based on its nonappearance at duly scheduled EUOs was appropriate as a matter of law - and because plaintiff submits no admissible evidence in support of its cross-motion.
For the reasons that follow hereinafter, defendant's motion is granted and plaintiff's cross-motion is denied.
The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On March 4, 2013, Colon-Chavez was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained therein. Colon-Chavez was entitled to receive no-fault benefits under the defendant's insurance policy, which benefits Colon-Chavez assigned to plaintiff. The treatments provided by plaintiff to Colon-Chavez totaled $200.68, were billed to defendant, but were never paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sum pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ( 11 NYCRR 65-3.1 et seq. ).
11 NYCRR 65-3.1 states that "[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law."
Standard of Review
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law ( Alvarez v Prospect Hospital , 68 NY2d 320, 324 [1986] ; Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof ( Mondello v DiStefano , 16 AD3d 637, 638 [2d Dept 2005] ; Peskin v New York City Transit Authority , 304 AD2d 634, 634 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form ( Muniz v Bacchus , 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York , 67 AD3d 21, 25 [1st Dept 2009] ). Notably, the court can consider otherwise inadmissible evidence when the opponent fails to object to its admissibility and instead relies on the same ( Niagara Frontier Tr. Metro Sys. v County of Erie , 212 AD2d 1027, 1028 [4th Dept 1995] ).
Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case
( Friends of Animals v Associated Fur Manufacturers, Inc. , 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form ( Johnson v Phillips , 261 AD2d 269, 270 [1st Dept 1999] ).
When deciding a summary judgment motion, the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000] ),
[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial
( see also Yaziciyan v Blancato , 267 AD2d 152, 152 [1st Dept 1999] ; Perez v Bronx Park Associates , 285 AD2d 402, 404 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding, not issue determination ( Sillman v Twentieth Century Fox Film Corp. , 3 NY2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v Ceppos , 46 NY2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied ( Stone v Goodson , 8 NY2d 8, 12 [1960] ).
No-Fault Law
Pursuant to 11 NYCRR 65-2.4(a), entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that
the eligible injured person or that person's assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered
( 11 NYCRR 65-2.4 [c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed ( Presbyt. Hosp. in City of New York v Atlanta Cas. Co. , 210 AD2d 210, 211 [2d Dept 1994] ; Maxwell v State Farm Mut. Auto. Ins. Co. , 92 AD2d 1049, 1050 [3d Dept 1983] ), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense ( id. ; Presbyt. Hosp. in the City of New York v Maryland Cas. Co. , 90 NY2d 274, 282 [1997] ; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co. , 295 AD2d 583, 584 [2d Dept 2002] ; Mount Sinai Hosp. v Triboro Coach Inc. , 263 AD2d 11, 16 [2d Dept 1999] ; Presbyt. Hosp. in City of New York v Atlanta Cas. Co. , 210 AD2d 210, 211 [2d Dept 1994] ).
Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider's failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim ( Kane v Fiduciary Ins. Co. of Am. , 114 AD3d 405, 405 [1st Dept 2014] ["The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated."]; St. Barnabas Hosp. v Penrac, Inc. , 79 AD3d 733, 734 [2d Dept 2010] ; Sunrise Acupuncture PC v ELRAC, Inc. , 52 Misc 3d 126[A], *1 [App Term 2016] ). Generally, once an insurer receives a claim from a medical provider, it must pay or deny the same within 30 days thereof ( 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co. , 78 AD3d 1168, 1168 [2d Dept 2010] ; Nyack Hosp. v Gen. Motors Acceptance Corp. , 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded , 8 NY3d 294 [2007] ; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. , 262 AD2d 553, 554 [2d Dept 1999] ).
However, the foregoing period - within which to deny or pay a claim - can be extended by a proper request for verification ( 11 NYCRR 65-3.5 [b] ["Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms."]), and when such a request is made, "an insurer is not obligated to pay or deny a claim until all demanded verification is provided" ( New York and Presbyt. Hosp. v Allstate Ins. Co. , 31 AD3d 512, 513 [2d Dept 2006] ; see Hosp. for Joint Diseases v Elrac, Inc. , 11 AD3d 432, 434 [2d Dept 2004] ; Nyack Hosp. at 101; [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. v Am. Tr. Ins. Co. , 287 AD2d 699, 700 [2d Dept 2001] ). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law ( 11 NYCRR 65-3.8 [j]; Nyack Hosp. at 100-101 ["Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days." ]). A request for verification thus tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided ( New York & Presbyt. Hosp. at 700 ["Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run."]; Westchester County Med. Ctr. at 555).
A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and "proof either that the defendant [ ] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [ ] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law" ( Ave T MPC Corp. v Auto One Ins. Co. , 32 Misc 3d 128[A] [App Term 2011] ; see New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742, 742 [2d Dept 2004] ; E. Coast Psychological, P.C. v Allstate Ins. Co. , 13 Misc 3d 133(A), *1 [App Term 2006] ; Mollins v Motor Veh. Acc. Indem. Corp. , 14 Misc 3d 133(A), *1 [App Term 2007] ). A provider can establish the foregoing with "evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue" ( St. Vincent's Hosp. of Richmond v Govt. Employees Ins. Co. , 50 AD3d 1123, 1124 [2d Dept 2008] ). An insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial ( id. at 124 ["However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant's standard office practices or procedures designed to ensure that items were properly addressed and mailed."]; New York and Presbyt. Hosp. at 513 ["However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action."]), or that denial within the 30 day prescribed by law wasn't given because such period was extended by a request for verification ( Nyack Hosp. at 100 ["Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period."]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).
Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment ( St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment ( New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. , 114 AD3d 648, 649 [2d Dept 2014] ; New York & Presbyt. Hosp. v Allstate Ins. Co. , 30 AD3d 492, 493 [2d Dept 2006] ; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. , 24 AD3d 492, 493 [2d Dept 2005] ; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co. , 8 AD3d 533, 534 [2d Dept 2004] ; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that
[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply.
Additionally, 11 NYCRR 65-3.8(b)(3) states that
an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.
Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established ( Hosp. for Joint Diseases v Elrac, Inc. , 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8 [b][3], the court held that "[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied."]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co. , 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co. , 57 Misc 3d 133(A), *1 [App Term 2017] ). Significantly, in Hosp. for Joint Diseases the court held that defendant - the insurer - established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant's business records established defendant's defense - timely denial ( id. at 433-434 ) .
It bears mentioning that the court's reasoning in Hosp. for Joint Diseases - that "[p]ersonal knowledge of [defendant's] documents, their history, or specific content are not necessarily required of a document custodian" ( id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment - is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein ( CPLR § 4518 ; People v Kennedy , 68 NY2d 569, 579 [1986] ). Accordingly, "[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files" ( DeLeon v Port Auth. of New York and New Jersey , 306 AD2d 146 [1st Dept 2003] ).
It is well settled that a party's burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form "of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" ( New York and Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547, 547 [2d Dept 2006] ; Residential Holding Corp. v Scottsdale Ins. Co. , 286 AD2d 679, 680 [2d Dept 2001] ["Here, the deposition testimony of AIC's president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of deliver."]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16, 18 [App Term 2007] [the law does not "requir[e] that an affidavit of mailing must state either that it was the affiant's duty to ensure compliance with the insurer's standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed."]).
Pursuant to 11 NYCRR 65-1.1(d), Sec.1, Proof of Claim (b) and (d),
[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage ... [and] [u]pon request by the Company, the eligible injured person or that person's assignee or representative shall ... as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same ... [and/or] [t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.
An Examination Under Oath (EUO) and/or an Independent Medical Examination (IME) are verification requests under the rules ( Quality Psychological Services, P.C. v Utica Mut. Ins. Co. , 38 Misc 3d 136[A], *1 [App Term 2013] ; A.B. Med. Services PLLC v Eagle Ins. Co. , 3 Misc 3d 8, 10 [App Term 2003] ; Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino v State Farm Mut. Auto. Ins. Co. , 29 Misc 3d 278, 283 [NY Dist Ct 2010] ). Moreover, an IME and an EUO are conditions precedent to payment of no-fault benefits, and an assignor's failure to appear for the same, once properly notified by the insurer, vitiates the policy and precludes payment thereunder ( Kemper Indep. Ins. Co. v Adelaida Physical Therapy, P.C. , 147 AD3d 437, 438 [1st Dept 2017] ; Mapfre Ins. Co. of New York v Manoo , 140 AD3d 468, 469 [1st Dept 2016] ["The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage."]; Hertz Corp. v Active Care Med. Supply Corp. , 124 AD3d 411, 411 [1st Dept 2015] ["The No—Fault Regulation contains explicit language in 11 NYCRR 65—1.1 that there shall be no liability on the part of the no-fault insurer if there has not been full compliance with the conditions precedent to coverage. Thus, defendants’ failure to attend the EUOs is a violation of a condition precedent to coverage that vitiates the policy."]; Allstate Ins. Co. v Pierre , 123 AD3d 618, 618 [1st Dept 2014] ["Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs)."]; Life Tree Acupuncture P.C. v Republic W. Ins. Co. , 50 Misc 3d 132(A), *1 [App Term 2016] ["The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider's claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear."]; Alfa Med. Supplies, Inc. v Praetorian Ins. Co. , 50 Misc 3d 126(A), *1 [App Term 2015] ["Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider's claim for first-party no-fault benefits by establishing that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and her attorney, and that the assignor failed to appear."]). The foregoing is true even if there is no timely denial of coverage because the failure to appear is a condition precedent to coverage - an exclusion to coverage - which cannot be precluded ( Cent. Gen. Hosp. v Chubb Group of Ins. Companies , 90 NY2d 195, 199 [1997] ["We are persuaded that an insurer, despite its failure to reject a claim within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition."]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC , 82 AD3d 559, 560 [1st Dept 2011] ).
Indeed, the failure to appear for a duly scheduled IME or EUO voids no-fault coverage under the policy ab initio ( Unitrin Advantage Ins. Co. v Dowd , 143 NYS3d 543 [1st Dept 2021] ["The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio."]; Unitrin Advantage Ins. Co., 82 AD3d at 560 ["The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants’ assignors’ failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity ... It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage."]).
When an EUO is requested, an insurer need not provide any reason for requesting the same ( Flow Chiropractic, P.C. v Travelers Home and Mar. Ins. Co. , 44 Misc 3d 132[A], * 1 [App Term 2014] [No provision of No-Fault Regulations 68 requires an insurer's notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs" (internal quotation marks omitted).]; Metro Psychological Services, P.C. v 21st Century N. Am. Ins. Co. , 47 Misc 3d 133[A], *1-2 [App Term 2015] ) and any challenge to the EUO must be raised prior to the date the assignor is required to appear or it cannot be considered ( Flow Chiropractic, P.C. at *1; Crescent Radiology, PLLC v Am. Tr. Ins. Co. , 31 Misc 3d 134[A], *2 [App Term 2011] ).
An insurer establishes prima facie entitlement to summary judgment and dismissal of the complaint on grounds that an assignor failed to appear for an EUO by tendering evidence "that it requested IMEs [and/or EUOs] in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear" ( Unitrin Advantage Ins. Co., 82 AD3d at 560 ; Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co. , 34 Misc 3d 150[A], *1 [App Term 2012] ).
An affidavit from the person assigned to perform the EUO is sufficient to establish the assignor's failure to appear ( Crescent Radiology, PLLC at *2), as is an affirmation from a partner at the firm tasked to perform the EUO ( W & Z Acupuncture, P.C. v Amex Assur. Co. , 24 Misc 3d 142[A], *1 [App Term 2009] ), or transcripts of the failed EUO ( Metro Psychological Services, P.C. at *1). The relevant inquiry is whether the person asserting that the assignor failed to appear has the requisite personal knowledge ( Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. , 40 Misc 3d 130[A], *1 [App Term 2013] ; Alrof, Inc. v Safeco Nat. Ins. Co. , 39 Misc 3d 130[A], *1-2 [App Term 2013] ["The affidavit of defendant's attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts."]).
Defendant's Motion
Defendant's motion for summary judgment is granted. Significantly, defendant establishes, beyond any factual dispute, that it denied the instant claim after it timely scheduled two EUOs at which plaintiff, without objection, failed to appear. Thus, because plaintiff failed to comply with a condition precedent to coverage, no-fault benefits were properly denied.
In support of the instant motion, defendant submits an affidavit by Richard C. Aitken (Aitken), an attorney with the law firm of Bruno, Gerbino, Soriano & Aitken, LLP. Aitken, upon his review of his firm's and defendant's records, states the following. Aitken's firm, at which he is a partner, was retained by defendant to conduct an EUO of plaintiff. On April 15, 2013, defendant mailed a letter to plaintiff and its counsel requesting that plaintiff appear for an EUO at Aitken's firm on May 16, 2013. On May 16, 2013, Kevin W. O'Leary was present at Aitken's office as he had been assigned to conduct the aforementioned EUO. Plaintiff, however, failed to appear. Thereafter, on May 22, 2013, defendant again mailed plaintiff and its counsel another letter requesting that plaintiff appear for an EUO at Aitken's firm on June 7, 2013. On June 7, 2013, Michael A. Soriano was present at Aitken's office as he had been assigned to conduct the EUO. Plaintiff, however, failed to appear. Aitken states that the letters sent to plaintiff by defendant were created and maintained in the ordinary course of defendant's business by an individual with personal knowledge of the events described therein. Additionally, the letters were mailed on the date they were created and it was the standard at Aitken's office to prepare the correspondence on the date created, have them signed by the attorney creating them, put them in envelopes bearing the recipient's name and address, seal the envelopes, place them in the outgoing mail bin in the mail room by 4pm for the affixation of postage and mailing by the clerk that very day.
Defendant submits an affidavit by Timothy Dacey (Dacey), a Claim Specialist employed by defendant. Dacey states that he is familiar with defendant's business practices as they relate to the handling of claims seeking no-fault benefits, including the receipt of documents by defendant and the creation and mailing of documents by defendant related thereto. Dacey reviewed all documents related to the instant claim, which are annexed to his affidavit and incorporated by reference, and he states that they were all created in the regular course of business. Dacey stated that all of the dates appearing on defendant's documents indicate the date they were created. When defendant receives documents related to no-fault claims, they are picked up from post office boxes every morning, Monday through Friday, tagged with information indicating when the document was received and scanned for electronic storage. If the documents received do not natively indicate when they were received, they are date stamped by defendant with the date received. Once scanned, the documents are reviewed to determine whether the claim should be paid, denied, or whether further verification is required. Whatever the determination, documents evincing the same are created and mailed to the appropriate parties.
With regard to the instant claim, Dacey states that plaintiff seeks reimbursement of no-fault benefits from defendant for medical services provided to Colon-Chavez on March 6, 2013. Defendant received the bill in question on March 28, 2013. Thereafter, defendant sought an EUO of plaintiff to determine plaintiff's eligibility under the rules. On April 15, 2013, defendant notified plaintiff of its request to conduct an EUO at 10am on May 16, 2013 at Aitken's office. Said notice was mailed on April 16, 2013. Because plaintiff failed to appear, on May 22, 2013, defendant again apprised plaintiff of its desire to perform an EUO at 10am on June 7, 2013 at Aitken's office. Said notice was mailed on May 23, 2013. Because plaintiff once again to appear, on June 28, 2013, defendant issued a denial of the instant claim. Said denial was mailed on July 1, 2013.
Defendant submits an affidavit by Susan Martin (Martin), an Administrative Services Technician, employed by defendant. Martin is familiar with defendant's procedures as they relate to its mailing of documents. In 2013, all mail related to no-fault claims was picked up, several times per day, from mail baskets and then brought back to a centralized mail room known as the Mail Center. With regard to outgoing mail, all mail received in the Mail Center by 3pm was sealed, posted, and picked up by the United States Postal Office (USPS). Prior to April 15, 2013, mail received Monday-Thursday was picked up by USPS shortly after 3pm. Mail received on Friday would be picked up by USPS the next day. Mail received on Saturday would be picked up by USPS shortly after 3pm that day. Between April 15, 2013 and May 13, 2013, all mail received in the Mail Center on Friday would be picked up by USPS the following Monday. Between May 13, and November 15, 2015, defendant used a mail vendor who delivered mail to USPS. Any mail received by the Mail Center before 2:30pm, would be picked up by the vendor at 2:45pm.
Defendant submits an affidavit by Dennis Riley (Riley), Director of the Center for Disability Services (CDS). Riley states that between May 13, 2013 through November 15, 2015, he was employed by CDS to pick up mail from defendant at its Ballston Spa Location once every weekday at 2:45pm. The mail was the brought to the CDS facility, sorted by zip code and then delivered to USPS.
Defendant submits an affidavit by George Perry (Perry), Team Manager, employed by defendant at its Ballston Spa, NY location. According to Perry, when defendant denies a claim, an NF-10 is created on a computer by a claim handler. The NF-10 is accompanied by an Explanation for Review (EOR). The foregoing documents are then printed bearing the date the same was printed. They are then placed in an envelope which bears the address of the claimant which billed defendant. That address is the same one found on the bills submitted to defendant. Thereafter, on the date the documents are printed, the envelopes are placed in baskets, which are then retrieved by a mail room employee for mailing.
Defendant submits a claim form dated March 15, 2013, which indicates that on March 6, 2013, plaintiff treated Colon-Chavez secondary to a motor vehicle accident. The amount billed for said treatment was $200.68.
Defendant submits a denial of claim form dated June 28, 2013. Said document indicates that defendant denied plaintiff's claim because plaintiff "failed to comply with [its] obligation to present proof of claim ... including the examination under oath ... on May 16, 2013 and June 7, 2013."
Defendant submits a letter dated April 15, 2013, wherein it requests that plaintiff appear for an EUO on May 16, 2013 at Aitken's office. The letter requests documents, such as documents evincing ownership of plaintiff's corporation and those relating to income and expenses. Defendant submits another letter dated May 22, 2013, wherein it indicates that plaintiff failed to appear at the first EUO and requests that defendant appear at the same location and with the same documents on June 7, 2013.
Based on the foregoing, defendant establishes prima facie entitlement to summary judgment insofar as the evidence submitted in support of its motion establishes that defendant timely requested an EUO and properly denied plaintiff's claim for its failure to appear.
First, defendant establishes entitlement to summary judgement insofar as it establishes that it timely requested that plaintiff submit to an EUO and thereafter, upon plaintiff's failure to submit to the same, defendant denied the instant claim.
To be sure, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof ( 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Westchester County Med. Ctr. at 555). However, the foregoing period within which to deny or pay a claim can be extended by a proper request for verification ( 11 NYCRR 65-3.5 [b]), and when such a request is made, "an insurer is not obligated to pay or deny a claim until all demanded verification is provided" ( New York and Presbyt. Hosp. at 513; Hosp. for Joint Diseases at 434; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. at 700). A request for verification must usually be submitted within 15 days of receipt of the claim ( 11 NYCRR 65-3.5 [b]). However, such verification, when submitted more than 15 days after a claim is received, does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law ( 11 NYCRR 65-3.8 [j]; Nyack Hosp. at 100-101). Indeed, a request for verification tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided ( New York & Presbyt. Hosp. at 700; Westchester County Med. Ctr. at 555).
An EUO and/or an IME are verification requests under the rules ( Quality Psychological Services, P.C. at *1; A.B. Med. Services PLLC at 10; Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino at 283) and conditions precedent to payment of no-fault benefits. Accordingly, the failure to appear for the same, once properly notified by the insurer, vitiates the policy and precludes payment thereunder ( Kemper Indep. Ins. Co. at 438; Mapfre Ins. Co. of New York at 469; Hertz Corp. at 411; Allstate Ins. Co. at 618; Life Tree Acupuncture P.C. at *1; Alfa Med. Supplies, Inc. at *1; Unitrin Advantage Ins. Co. , 82 AD3d at 560 ).
Moreover, the failure to appear for a duly scheduled IME or EUO voids no-fault coverage under the policy ab initio ( Unitrin Advantage Ins. Co., 143 NYS3d at 543 ; Unitrin Advantage Ins. Co., 82 AD3d at 560 ). Significantly, the foregoing is true even if there is no timely denial of coverage because the failure to appear is a condition precedent to coverage - an exclusion to coverage - which cannot be precluded ( Cent. Gen. Hosp. at 199; Unitrin Advantage Ins. Co. , 82 AD3d at 560 ).
Here, the affidavits submitted by defendant along with the claim form establish that defendant timely requested verification - the EUO - within 30 days of receipt of plaintiff's claim. Specifically, with regard to when the instant claim was received, Dacey states that when defendant receives documents related to no-fault claims, the date they are received are noted. Dacey then states that plaintiff's claim forms were received on March 28, 2013. Here, a review of the first request for an EUO evinces that it was dated April 15, 2013. Based on the record, namely Martin and Riley's affidavit, defendant establishes that the EUO request was mailed either on April 15 or 16, 2013. Significantly, the foregoing affidavits describe defendant's actual mailing protocol and thus establish that these letters were mailed and therefore, presumed to have been received by plaintiff ( New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18) Accordingly, defendant requested the EUO 17 or 18 days after it received the claim, making the request timely. The same is true for the second request, dated May 22, 2016, approximately six days after plaintiff failed to appear. Accordingly, the EUOs were timely requested.
Dacey's affidavit lays a business records foundation for all of the documents appended to her affidavit insofar as the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein ( CPLR § 4518 ; Kennedy at 579). Thus, all of the documents described by the Court and which are appended to her affidavit are before the Court in admissible form.
Defendant also establishes that despite the requests that plaintiff appear for an EUO, it never appeared. To be sure, an affidavit from the person assigned to perform the EUO is sufficient to establish the assignor's failure to appear ( Crescent Radiology, PLLC at *2), as is an affirmation from a partner of the firm tasked to perform the EUO ( W & Z Acupuncture, P.C. at *1). The relevant inquiry is whether the person asserting that the assignor failed to appear has personal knowledge ( Bright Med. Supply Co. at *1; Alrof, Inc. at *1-2). Here, Aitken's affidavit, based on his review of his office's records establishes that plaintiff failed to appear for either of the EUOs. Accordingly, defendant establishes that defendant failed to appear.
The foregoing, coupled with the evidence that the EUO's were duly scheduled, establishes that the claim here was properly denied. Significantly, an insurer establishes prima facie entitlement to summary judgment and dismissal of the complaint on grounds that an assignor failed to appear for an EUO by tendering evidence "that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear" ( Unitrin Advantage Ins. Co., 82 AD3d at 560 ; Bath Ortho Supply, Inc. at *1). Here, the denial of claim form submitted by defendant and dated June 28, 2013 establishes that the claim was denied because plaintiff failed to appear at an EUO. Based on Perry's affidavit, defendant, describing when and how said denial was mailed, defendant establishes that said denial was mailed on June 28, 2013. Inasmuch as the initial request for an EUO was made 17 days after the claim was received, defendant technically only had 13 days after plaintiff's failure to appear to deny this claim. Inasmuch as the denial was made beyond that time, it is untimely. However, under these circumstances, where the failure to appear is a condition precedent to coverage - an exclusion to coverage - the same cannot be precluded even if the denial is untimely ( Cent. Gen. Hosp. at 199; Unitrin Advantage Ins. Co. , 82 AD3d at 560 ).
Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment.
Significantly, here, plaintiff submits no admissible evidence sufficient to raise an issue of fact and instead asserts that defendant fails to establish prima facie entitlement to summary judgment.
With respect to plaintiff's attempt to raise an issue of fact, plaintiff submits two letters, dated April 19, 2013 and May 29, 2013, respectively. Within these letters, plaintiff objects to both of the EUOs, asserting that the defendant's document demand within its request is improper. These letters, however, are provided absent any foundation for their admission into evidence. Therefore, the Court cannot consider them. To be sure, the opponent of a motion for summary judgment must tender evidence in admissible form, unless an excuse for tendering evidence in inadmissible form is proffered ( Friends of Animals at 1067-1068; Johnson at 270). Here, plaintiff proffers no excuse for its failure to provide the instant letters in admissible form. Thus, the Court treats plaintiff's objections as impermissibly made for first time with its opposition ( Flow Chiropractic, P.C. at *1; Crescent Radiology, PLLC at *2).
Plaintiff's argument that it had no obligation to attend the EUOs because the notices were defective is unavailing. First, contrary to plaintiff's assertion, an insurer need not provide any explanation for its verification request ( Flow Chiropractic, P.C. at *1; Metro Psychological Services, P.C. at *1-2). Second, plaintiff's reliance on cases such as Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino v State Farm Mut. Auto. Ins. Co. (29 Misc 3d 278 [NY Dist Ct 2010] ), deeming an EUO request invalid because it sought documentation, is unavailing. Preliminarily, the foregoing District Court decision is not binding on this Court. Moreover, that court's holding is flawed and not supported by the rule or appellate law it cites. To be sure, to the extent that the court in Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino cites 11 NYCRR 65-3.5(a) for the proposition that the foregoing rule bars document requests in EUO notices, it does so in error. Nothing in 11 NYCRR 65-3.5(a) precludes the records requested by defendant. Instead, 11 NYCRR 65-3.5(a) merely states that "the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim."
In addition, and more significantly, contrary to the holding in Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino , the court in New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. , 25 Misc 3d 134[A] [App Term 2009] ), in which case the District Court relies, by granting defendant leave to amend its answer to interpose an affirmative defense of fraudulent incorporation, did not hold as urged by the court in Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino that "[i]f a carrier believes the provider/assignee is subject to a Mallela defense, the proper way to assert it is as an affirmative defense in its answer" ( id. at 284 ). Indeed, the court in New York First Acupuncture, P.C. merely stated that the foregoing defense need not be interposed in a denial of claim form and could be raised as an affirmative defense in defendant's answer to a plenary action ( id. at *2).
In reviewing the applicable law, this Court further finds that the holding in Dynamic Med. Imaging, P.C., as Assignee of Staffa Pasqualino is contrary to law since it bars the production of documents at an EUO necessary to establish that a medical provider is authorized to reimbursement under the no-fault law. To be sure, although under 11 NYCRR 65-3.16(a)(12), a provider need only be licensed for reimbursement, it is also settled that in New York, "a fraudulently incorporated medical company is a provider of health care services within the meaning of the regulation[s] ( State Farm Mut. Auto. Ins. Co. v Robert Mallela , 4 NY3d 313, 321 [2005] ), and under such circumstances, such provider is not entitled to reimbursement ( id. at 320 ["We accepted the certification and now answer that such corporations are not entitled to reimbursement."]). Whether a corporation is fraudulently incorporated for purposes of reimbursement turns on whether the corporation runs afoul of BCL § 1508(a), which states that
[n]o individual may be a director or officer of a professional service corporation unless he is authorized by law to practice in this state a profession which such corporation is authorized to practice and is either a shareholder of such corporation or engaged in the practice of his profession in such corporation.
Accordingly, here, the request for documents is appropriate in that it seeks, inter alia , "[d]ocuments evidencing ownership of the Professional Corporation," which would help defendant determine whether plaintiff, although licensed, was fraudulently incorporated and if so, whether denial of reimbursement was warranted.
Plaintiff's Cross-Motion
For the reasons stated above - the absence of any material questions of fact with respect to defendant's timely request for an EUO, plaintiff's failure to appear, and the timely denial of the instant claim - plaintiff's cross-motion for summary judgment must be denied. It is hereby
ORDERED that complaint be dismissed, with prejudice. It is further
ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.