Opinion
707177/2016
03-08-2017
Park Taxi Corp., Plaintiff, v. Nina Baum, Defendant.
For Plaintiff: Wilson, Elser, Moskowitz, Edelman & Dicker LLP by: John A. Hsu, Esq. 150 East 42nd Street New York, NY ForFor Defendant: Lance Ehrenberg, Esq. 56 West 45th Street New York, NY 10036
For Plaintiff: Wilson, Elser, Moskowitz, Edelman & Dicker LLP by: John A. Hsu, Esq. 150 East 42nd Street New York, NY ForFor Defendant: Lance Ehrenberg, Esq. 56 West 45th Street New York, NY 10036 Salvatore J. Modica, J.
The following papers numbered EF5 to EF38 were read on this motion by defendant for summary judgment in her favor pursuant to CPLR 3212. Papers Numbered Notice of Motion - Affidavits - Exhibits EF5-EF17 Answering Affidavits - Exhibits EF18-EF30 Reply Affidavits EF31-EF38
Upon the foregoing papers, it is ordered that the motion is determined as follows:
This is an action brought by Park Taxi Corp. (Park Taxi") for declaratory relief to determine issues concerning defendant's claims for reimbursement of no-fault benefit (medical and dental), for which she paid out-of-pocket, in the amount of $77,243.55, with interest and fees, pursuant to Article 51 of the Insurance Law. The underlying claim relates to injuries sustained by defendant in a motor vehicle accident on April 24, 2009, in Manhattan.
It is alleged that defendant treated with various providers, including chiropractors, neurologists and dentists, for the period of May 20, 2009, through September 14, 2013. The record indicates that defendant did not assign any of her benefits to such providers but paid them out of pocket for treatment. Park Taxi denied payment on April 11, 2014 and August 5, 2014, for the following reasons: (1) a policy violation for failure to cooperate by attending a scheduled Independent Medical Examination; (2) late submission of bills; (3) submission of incomplete bills/proposed treatment plans; and (4) for failure to provide proper documentation of her alleged voluntary payments.
Thereafter, an arbitration hearing was held and arbitrator Glen Weiner awarded defendant $69,683.55, as well as interest and counsel fees, by decision dated February 15, 2016. Park Taxi appealed the arbitration award, and requested that a Master Arbitrator review the decision and issue an award reversing the lower arbitrator's decision. In a determination dated May 17, 2016, Master Arbitrator Robert Trestman affirmed the lower arbitration decision in its entirety.
By the instant action, Park Taxi seeks a de novo review (Insurance Law § 5106 [c], formerly § 675 [2]2), of the claims for reimbursement of no-fault benefits for which defendant paid out-of-pocket in the amount of $77,243.55. Defendant moves for summary judgment in her favor dismissing the complaint, pursuant to CPLR 3212, and to confirm the arbitration award. Plaintiff opposes the motion.
DISCUSSION
Insurance Law section 5106(c) provides, in relevant part, that where the amount of the master arbitrator's award is $5,000 or greater, the insurer or claimant may institute an action to adjudicate the dispute de novo. The plaintiff here is entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since the master arbitrator's award in favor of the defendant exceeded the statutory threshold sum of $5,000 (see, Insurance Law § 5106[c]; Allstate Ins. Co. v. Nalbandian, 89 AD3d 648, 648, 931 N.Y.S.2d 698, 699 [2011]; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576—577, 523 N.Y.S.2d 67, 517 N.E.2d 879).
The branch of the motion which is for summary judgment and to confirm the arbitration award is granted. Park Taxi's initial contention that defendant was untimely in submitting the bills which she paid out-of-pocket is without merit. The record indicates that defendant properly mailed the bills at issue to plaintiff on the date that the medical services were rendered. In response to defendant's affidavit of mailing, plaintiff failed to present any evidence contesting either mailing or delivery. Plaintiff, instead, merely submitted its no-fault administrator's affidavit denying receipt.
In Aetna Ins. Co. v Millard (25 AD2d 341, 343), the Appellate Division, Second Department declared that "[i]t is a well-established rule that letters properly addressed, stamped and mailed are presumed received by the addressee even though the addressee denies receipt of the same."
In that regard, where, as herein, documentary proof of a mailing exists, mere denial of receipt is insufficient to overcome the presumption that such mailing occurred (see, Engel v Lichterman, 62 NY2d 943; Colucci v Zeolla, 138 AD2d 286), and the burden falls upon the addressee to present evidence sufficient to overcome the presumption and establish non-receipt (Vita v Heller, 97 AD2d 464). Thus, plaintiff's mere denial that the said bills were not received, without more, is insufficient to establish non-receipt of the same.
In any event, when an insurance company fails to comply with its duty to act expeditiously in processing no-fault claims, it will be precluded from raising most defenses (see, e.g., Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613; LaHendro v Travelers Ins. Co., 220 AD2d 971; Presbyterian Hosp. v Atlanta Caves. Co., 210 AD2d 210; Loudermilk v Allstate Ins. Co., 178 AD2d 897; Bennett v State Farm Ins. Co., 147 AD2d 779). This is because the very purpose of the no-fault law was to ensure the " 'swift reimbursement of accident victims ... who had serious injuries' " (Pavone v Aetna Caves. & Sur. Co., 91 Misc 2d 658, 663), with "as little litigation as possible" (Matter of Furstenberg [Aetna Caves. & Sur. Co.], 67 AD2d 580, 583, revd on other grounds 49 NY2d 757).
Plaintiff also alleges that defendant failed to appear for two IME examinations, as grounds for disclaiming coverage. However, plaintiff's own evidence indicates that this did not occur. Copies of plaintiff's scheduling letters indicate that the first two attempts to schedule the single IME sought resulted in rescheduling; the third was cancelled; and the fourth was defectively noticed by reason of failing to specify an examining physician and plaintiff's improper designation of a hospital location where the IME was to take place, but could not because defendant was no longer a patient in that hospital. Thus, based on Park Taxi's own evidence, not only did defendant not fail to appear for two or more IMEs, but she did not fail to appear for any IMEs.
Finally, as an aside, the record does not support a finding that any of the statutory disqualifications set forth in Judiciary Law section 14 are applicable (see Matter of New York State Assn. of Criminal Defense Lawyers v. Kaye, 95 NY2d 556, 561, 721 N.Y.S.2d 588, 744 N.E.2d 123; Robert Marini Bldr. v. Rao, 263 AD2d 846, 694 N.Y.S.2d 208). Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of its recusal (see People v. Moreno, 70 NY2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200). Here, plaintiff failed to set forth any proof of bias or prejudice (see Tornheim v. Tornheim, 28 AD3d 534, 816 N.Y.S.2d 87). Therefore, the contention made in opposition to the motion, for recusal of the court, is denied.
In short, defendant met her burden of establishing, prima facie, her entitlement to judgment as a matter of law on her cause of action to confirm the arbitration award and, thus, the motion is properly granted (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the complaint seeking a declaration that Park Taxi has no duty to reimburse defendant for out-of-pocket expenses for no-fault bills (medical and dental), under Article 51 of the New York State Insurance Law, is dismissed; and the arbitration award is confirmed.
The foregoing constitutes the decision, opinion, and order of this Court. Dated: March 8, 2017 Jamaica, New York Honorable Salvatore J. Modica J.S.C.