Opinion
Index No.: 514/11 Motion Seq. No.: 01 Motion Seq. No.: 02
09-01-2011
WESTCHESTER MEDICAL CENTER, a/a/o SHAHEEN AKHTAR, Plaintiff, v. HEREFORD INSURANCE COMPANY, Defendant.
SHORT FORM ORDER
PRESENT: HON.
Acting Supreme Court Justice
NASSAU COUNTY
The following papers have been read on these motions:
+---------------------------------------------------------------------------+ ¦ ¦Papers Numbered¦ +-----------------------------------------------------------+---------------¦ ¦Notice of Motion. Affirmation and Exhibits ¦1 ¦ +-----------------------------------------------------------+---------------¦ ¦Notice of Cross-Motion. Affirmation. Affidavit and Exhibits¦2 ¦ +-----------------------------------------------------------+---------------¦ ¦Reply and Opposition to Cross Motion and Exhibits ¦3 ¦ +-----------------------------------------------------------+---------------¦ ¦Reply Affirmation ¦4 ¦ +---------------------------------------------------------------------------+
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Plaintiff, Westchester Medical Center ("Westchester"), a/a/o Shaheen Akhtar ("Akhtar"), in an action pursuant to Insurance Law § 5106 (a) for the failure of defendant to pay no-fault billings, moves (Seq. No. 01), pursuant to CPLR § 3212, for an order granting it summary judgment. Defendant, Hereford Insurance Company ("Hereford"), cross-moves (Seq. No. 02), pursuant to CPLR §§ 3212 and 3211, for an order dismissing plaintiff's Verified Complaint in its entirety for failure to state a cause of action. Plaintiff opposes defendant's cross-motion.
Plaintiff is a hospital who alleges to have rendered medical treatment to assignor Akhtar for injuries suffered in an automobile accident. Defendant is a liability insurance carrier which allegedly provided no-fault benefits to the assignor. On October 19, 2010, plaintiff billed the defendant with a Hospital Facility Form (Form N-F 5) for payment of a hospital bill in the sum of $18,432.30 with respect to treatment received by Ms. Akhtar between June 23, 2010 and June 28, 2010 for injuries received as a result of an automobile accident which occurred on June 23, 2010. A form UB-04 and DRG Master Output Report were attached to the bill. The bill was mailed Certified Mail, Return Receipt Requested, and was received by defendant on October 20, 2010. Plaintiff submits that defendant failed to either pay the hospital bill or to issue a Denial of Claim Form and that said bill remains unpaid as of the date of the present motion.
Plaintiff commenced the instant action seeking payment for the amount due as per the October 19, 2010 hospital bill - $18,432.30. Plaintiff seeks summary judgment on its Verified Complaint on the basis that defendant was obligated to pay or deny the claims within thirty days of receipt of same.
Defendant cross-moves, pursuant to CPLR §§ 3212 and 3211, for an order dismissing plaintiff's Verified Complaint in its entirety for failure to state a cause of action. Defendant states that, "[p]laintiff has alleged that there was an existing policy of insurance, containing a Mandatory Personal Injury Protection Endorsement, issued by Hereford Insurance Company to one Shore View Limo, Inc., effective on 6/23/10, the alleged date of loss. However, the plaintiff has failed to include either a policy number, claim number or any other identifying information in its Complaint. As such, the plaintiff has failed to establish a prima facie case of entitlement to no-fault benefits, and its Complaint should be dismissed as a matter of law."
Defendant submits that the No-Fault Insurance Law and regulations require an accident victim to submit a notice of claim to the insurer as soon as practicable and no later than thirty days after the accident. See 11 NYCRR 65-1.1; 11 NYCRR 65-2.4(b). Defendant contends that it has no record of receiving notice of any accident on June 23, 2010 involving a vehicle insured by Shore View Limo Inc. Furthermore, defendant has no record of receiving a bill for $18,432.30 from plaintiff with respect to treatment received by Ms. Akhtar between June 23, 2010 and June 28, 2010. Defendant argues that plaintiff's proof of mailing is insufficient to establish mailing of the bill at issue since the certified mail receipts did no clearly note the exact bill, with sufficient detail, which was allegedly mailed. Defendant further argues that the affidavit of Peter Kattis, an employee of Hospital Receivables Systems, Inc., as a Biller and Account Representative for plaintiff, is also insufficient as it merely includes conclusory statements without adequately describing the standard office practice and procedure regarding the issuance and mailing of the bill.
Defendant adds that under the No-Fault Insurance Law and regulations, a medical provider must submit a properly completed proof of claim to the insurer within forty-five days after the medical services are rendered. See 11 NYCRR 65-1.1; 11 NYCRR 65-2.4(c). Defendant states that, "even if the plaintiff's proof of mailing was sufficient, the same does not establish timely submission of the bill in question to the defendant. Specifically, the bills were submitted to the insurance carrier more than 45 days after the services were allegedly rendered. According to plaintiff's own proof of mailing, the certified mail item of unknown contents was allegedly delivered 114 days after the services in question were rendered."
In opposition to defendant's cross-motion, plaintiff argues that there is no merit to defendant's contention that it did not receive the plaintiff's claim. Plaintiff asserts that the defendant signed a certified mail receipt for the hospital bill (Form NF-5) on October 20, 2010 and that said signed Certified mail receipt is proof of delivery and is not rebutted by the defendant's mere denial. Plaintiff also claims that defendant issued an insurance identification card to Shore View Limo, Inc. which purportedly confirms that insurance was in effect from March 1, 2010 through March 1, 2011, which includes the date of the subject accident (June 23, 2010). See Plaintiff's Affirmation in Reply and Opposition to Cross-Motion Exhibit 2. Plaintiff further argues that the affidavit of defendant's representative, Daniel Krupnick, is insufficient to prove lack of insurance coverage since Mr. Krupnick is not an Underwriter and expresses no expertise in the methodology for determining insurance coverage.
In reply, defendant submits that plaintiff has failed to rebut defendant's showing that there is no applicable insurance coverage with defendant pertaining to the within claim. Defendant states that "the submission of an insurance identification card does not establish the plaintiff's right to no-fault coverage under that policy. There has been no evidence submitted proving that the vehicle allegedly insured under this policy was involved in the motor vehicle accident in question on 6/23/10. There has been no evidence that the assignor was a passenger in this motor vehicle. As such, the connection between this vehicle and the loss in question has not been made."
11 NYCRR, Part 65, the regulations implementing the Comprehensive Motor Vehicle Insurance Reparations Act, commonly referred to as the No-Fault Law, provides that "No-Fault Benefits are overdue if not paid within thirty calendar days after the insurer receives proof of claim...." See 11 NYCRR 65-3.8 (a)(1). Within thirty (30) days of receiving a claim, the insurer is required to either pay or deny the claim in whole or in part. See Insurance Law § 5106 (a); 11 NYCRR 65-3.8 (c). However, this thirty (30) day period may be extended by a timely demand by the insurance company for further verification of a claim. See 11 NYCRR 65-3.5. Within ten (10) business days after receipt of the completed application for no-fault benefits, the insurer must forward, to the parties required to complete them, the prescribed verification forms it will require prior to payment of the initial claim. See 11 NYCRR 65-3.5 (a). If the demanded verification is not received within thirty (30) days, the insurance company must follow up within ten (10) calendar days of the insurers failure to respond, either by telephone call or mail. See 11 NYCRR 65-3.5 (b); New York Hospital Medical Center of Queens v. State Farm Mutual Automobile Insurance Company, 293 A.D.2d 588, 741 N.Y.S.2d 86 (2d Dept. 2002). As a complete proof of claim is a prerequisite to receiving no-fault benefits, a claim need not be paid or denied until all demanded verification is provided. See 11 NYCRR 65-3.5 (c); Montefiore Medical Center v. New York Central Mutual Fire Insurance Company, 9 A.D.3d 354, 780 N.Y.S.2d 161 (2d Dept. 2004); New York and Presbyterian Hospital v. American Transit Insurance Co., 287 A.D.2d 699, 733 N.Y.S.2d 80 (2d Dept. 2001); Hospital for Joint Diseases v. Elrac, Inc., 11 A.D.3d 432, 783 N.Y.S.2d 612 (2d Dept. 2004). Statutory interest and attorneys fees may be directed if payment is not timely made on a completed claim. See Insurance Law § 5106(a); 11 NYCRR 65-3.9; 11 NYCRR 65-3.10.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century- Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N. Y.2d 320, 508 N. Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century- Fox Film Corp, 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), supra.
Based upon the foregoing, the Court holds that plaintiff established its prima facie entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms had been mailed and received and that the defendant had failed to either pay or deny the claim within the requisite thirty (30) day period. See Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co, 9 N.Y.3d 312, 849 N.Y.S.2d 473 (2007); New York and Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D.3d 512, 818 N.Y.S.2d 583 (2d Dept. 2006); Nyack Hospital v. General Motors Acceptance Corp., 27 A.D.3d 96, 808 N.Y.S.2d 399 (2d Dept. 2005); New York and Presbyterian Hosp. v. AIU Ins. Co., 20 A.D.3d 515, 799 N.Y.S.2d 245 (2d Dept. 2005); New York and Presbyterian Hosp. v. Progressive Cas. Ins. Co., 5 A.D.3d 568, 774 N.Y.S.2d 72 (2d Dept. 2004). While defendant states that it did not receive the bill from plaintiff, plaintiff provided as evidence that defendant did indeed receive said bill a signed certified mail receipt dated October 20, 2010.
The Court, however, finds that defendant raised an issue of fact with respect whether or not it received notice of any accident on June 23, 2010 involving a vehicle insured by Shore View Limo Inc. as required by the No-Fault Insurance Law and regulations. See 11 NYCRR 65-1.1; 11 NYCRR 65-2.4(b).
Therefore, based upon the above, plaintiff's motion (Seq. No. 01) is hereby DENIED and defendant's cross-motion (Seq. No. 02) is also hereby DENIED.
It is further ordered that the parties shall appear for a Preliminary Conference on October 13, 2011, at 9:30 a.m., at the Preliminary Conference Desk in the lower level of 100 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this Order shall be served on all parties and on the DCM Case Coordinator. There will be no adjournments, except by formal application pursuant to 22 NYCRR § 125.
This constitutes the Decision and Order of this Court.
ENTER:
DENISE L. SHER , A.J.S.C. Dated: Mineola, New York
August 29, 2011