Opinion
99710/06
07-01-2015
AR MEDICAL REHABILITATION a/a/o Michelle Estrella, Jaime Ramon, Yolande Smart, Plaintiff(s), v. STATE–WIDE INSURANCE COMPANY, Defendant. AR Medical Rehabilitation a/a/o Wayne Cohen, Plaintiff(s), v. State–Wide Insurance Company, Defendant.
Stefan Belinfanti, Esq., Gary Tsirelman P.C., Brooklyn, Attorneys for Plaintiff. Diedre J. Tobin & Associates, Garden City, Attorneys for Defendant.
Stefan Belinfanti, Esq., Gary Tsirelman P.C., Brooklyn, Attorneys for Plaintiff.
Diedre J. Tobin & Associates, Garden City, Attorneys for Defendant.
Opinion
KATHERINE A. LEVINE, J. Plaintiff AR Medical Rehabilitation P.C. (“plaintiff” or “AR Medical”), a medical services provider, seeks to recover no-fault benefits for services it provided to its assignors. Defendant State Wide Insurance Co. (“defendant” or “State Wide”) moves to dismiss the claim on the ground that plaintiff failed to establish its prima facie case by offering proof of mailing. The issue is whether a plaintiff may offer an NF–10 denial of claim form into evidence to prove that it mailed the subject claim form and that the insurer received it.
The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant received it, and that the no-fault benefits were overdue. Westchester Med. Ctr. v. Progressive, 89 A.D.3d 1081–82, 933 N.Y.S.2d 719 (2d Dept.2011). See, New York Hospital Medical Center of Queens v. QBE Ins. Corp., 114 A.D.3d 648, 979 N.Y.S.2d 694 (2d Dept.2014) ; Lexington
Acupuncture P.C. v. MVAIC, Index No. 13328/09, 37 Misc.3d 1210(A), 2012 WL 5045518 (Civil Ct., Kings Co.2012) ; N.Y. Hospital Medical Center of Queens v. MVAIC, 12 A.D.3d 429, 784 N.Y.S.2d 593 (2d Dept.2004) ; Mary Immaculate Hosp. v. Allstate Ins. Co. 5 A.D.3d 742–43, 774 N.Y.S.2d 564 (2d Dept.2004).
In Viviane Etienne Med. Care v. Country–Wide Ins. Co., 25 N.Y.3d 498, 506–07, 14 N.Y.S.3d 283, 289–91, 35 N.E.3d 451 (2015), the Court of Appeals affirmed the aforementioned precedent, stating that in a no fault summary judgment motion where benefits are overdue, the plaintiff must prove that the “statutory claim forms were mailed to and received by the insurer,” citing with approval New York Hosp. Med. Ctr. of Queens v. QBE Ins. Corp., supra. Amplifying on this standard, the Court ruled that a medical provider must “submit proof of mailing through evidence in admissible form,” which proof may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business.” Id. In affirming the Second Department holding, the Court of Appeals also upheld the lower court's holding that the burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed. Viviane Etienne Medical Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 45, 977 N.Y.S.2d 292 (2d Dept.2013). See also, NYU Hosp. for Joint Diseases v. Country Wide Ins. Co., 84 A.D.3d 1043, 1043–1044, 925 N.Y.S.2d 89 (2d Dept.2011) (Plaintiff established its prima facie case by submitting, among other things, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant); Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680, 729 N.Y.S.2d 776 (2d Dept.2001) (“The presumption [of mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed”). The Court of Appeals emphasized that affidavits in support of the motion for summary judgment, which presumably would include affidavits of mailing, must fall within the business record exception in CPLR § 4518 to the rule against hearsay.
Neither the Court of Appeals nor the Second Department in Viviane Etienne addressed whether at trial, a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer. Prior to Viviane Etienne, the Appellate Term, Second Department found that a medical provider's receipt of an NF–10 denial form from the insurer was sufficient to establish that the claim form was sent by the medical provider and received by the insurer. See, Eagle Surgical Supply, Inc. v. Allstate Ins. Co., 42 Misc.3d 145(A), 2014 N.Y. Slip Op. 50343(U), 2014 WL 996322 (App.Term, 2d Dept.2014) ; EMC Health Prods., Inc. v. Geico Ins. Co., 43 Misc.3d 139(A), 139(A), 2014 WL 2057720 (App.Term 2d Dept.2014) ; Oleg Barshay DC. P.C. v. State Farm Ins. Co., 14 Misc.3d 74, 831 N.Y.S.2d 821 (App.Term, 2d Dept.2006) ; Accessible & Advance Med. P.C. v. Allstate Ins. Co., 12 Misc.3d 147(A), 147A, 2006 WL 2381502 (App.Term 2d Dept.2006) ; Prestige Med. & Surgical Supply, Inc. v. Clarendon Natl. Ins. Co., 13 Misc.3d 127(A), 127A, 2006 WL 2535668 (App.Term 2d Dept.2006). See also, AR
Med. Rehabilitation, P.C. v. State–Wide Ins. Co., 2015 N.Y. Misc. LEXIS 1385, 2015 N.Y. Slip Op. 50631(U), 2015 WL 1897680 (Civ.Ct., Kings Co.2015). This is because plaintiff is not trying to use the denial as its own business record pursuant to CPLR 4518(a) but rather as an admission by defendant that the claim form has been received. Eagle Surgical, supra, at *2; EMC Health Prods, supra (“Defendant's denials admitted the receipt of the bills at issue ... and plaintiff was not required to establish a CPLR 4518 foundation for the bills”); King's Med. Supply Inc. v. Country–Wide Ins. Co., 5 Misc.3d 767, 770, 783 N.Y.S.2d 448 (Civ.Co., Kings Cty.2004).
Accordingly, a plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of the defendant's denial form indicating when defendant received the claim and when it denied it. Oleg Barshay, supra; King's Medical Supply, supra, at 451–52. The Viviane Etienne ruling does not alter this equation since the NF–10 is not being admitted for the truth of the matters asserted therein and therefore does not need to fall within the business records exception delineated in the Etienne decisions.
In light of the above, the Court finds that plaintiff's submission into evidence of the NF–10 denial is sufficient to establish that defendant received the claim. Plaintiff therefore established its prima facie case. As defendant did not present any witnesses to establish its defense, judgment is awarded to plaintiff.