Opinion
717938-18/KI
11-18-2020
BLACKMAN PELHAM MEDICAL, P.C., a/a/o Norquis Pineda, Plaintiff, v. MVAIC, Defendant.
Attorney for Plaintiff: David Landfair, Esq., Kopelevich & Feldsherova, PC 241 37th Street, Ste. B439, Brooklyn, NY 11232 Attorney for Defendant: Jeffrey Kadushin, Esq., on motion, Marshall & Marshall, PLLC 30 Jericho Executive Plaza, Ste. 100W, Jericho, New York 11753
Attorney for Plaintiff: David Landfair, Esq., Kopelevich & Feldsherova, PC 241 37th Street, Ste. B439, Brooklyn, NY 11232
Attorney for Defendant: Jeffrey Kadushin, Esq., on motion, Marshall & Marshall, PLLC 30 Jericho Executive Plaza, Ste. 100W, Jericho, New York 11753
Consuelo Mallafre Melendez, J.
The court's Decision and Order is based upon consideration of the following papers:
CPLR 2219(a) Recitation
NOTICE OF MOTION & AFFIDAVITS ANNEXED 1
OPPOSITION/CROSS-MOTION 2, 3
REPLY/OPPOSITION TO CROSS-MOTION
SUR REPLY
After oral argument and upon the foregoing cited papers, the Decision/Order on Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment, is as follows:
As to the fourth bill in Plaintiff's complaint in the amount of $249.96 for dates of service on April 9, 2015, Plaintiff established through the affidavit of its manager, Ruslan Bogatko, that the bill was submitted and never paid or denied. The affidavit is detailed and not conclusory. Plaintiff's position is further supported by the provider's proof of mailing log which includes this bill. However, Defendant, through its submissions failed to raise a triable issue of fact. Therefore, Plaintiff is entitled to judgment as to this bill, with statutory interest accruing from the date the bill came due.
As to the first, second, third, fifth, and sixth bills listed in the complaint, which cover dates of service from March 27, 2015 through April 27, 2015, in the total amount of $978.76, Defendant admits receipt of the bills between May 7, 2015, and May 28, 2015. Defendant also admits that the seventh bill for date of service on June 22, 2015 in the amount of $92.97, was received on July 7, 2015.
Defendant claims that they timely sent verification requests to Blackman Medical on June 10, 2015 and on July 16, 2015. They claim that a year later, on June 21, 2016, they received a response from a Windhaven Insurance Company and MVAIC determined that the assignor was "Qualified" for coverage. The court notes that Defendant did not state when a verification request was sent to Windhaven Insurance Company. On August 9, 2016, Defendant issued a denial of said bills. Defendant relied on their claim that "qualification" requests are outstanding to toll the bills.
The court finds that Defendant's denials were untimely. The Legislature has made it clear that MVAIC is subject to the same requirements under the No-Fault regulations as insurers ( Insurance Law § 5221[b][3] ). The Appellate Division has determined that defendant MVAIC maintains the same rights and obligations which are applicable to an insurer subject to Insurance Law Article 51 (NY Hosp. Med. Ctr. v. Motor Veh. Acc. Indem. Corp. , 784 N.Y.S.2d 593 [2nd Dept. 2004], lv appeal denied 825 N.E.2d 1093 [2005] ). The Second Department has expressly rejected a "defendant's contention that the 30-day time requirement contained in 11 NYCRR 65.15(g)(3) does not apply to it until after it has ‘qualified’ an injured party" (New York Hosp. Med. Ctr. of Queens v. Motor Veh. Acc. Indem. Corp. , 12 AD3d 429 [2d Dept 2004] ; see also Daily Med. Equip. Dist. Ctr., Inc. v. MVAIC , 53 Misc 3d 148[A] [App Term, 2d Dept 2016] ; Active Care Medical Supply Corp. v. MVAIC , 120 N.Y.S.3d 558, [NY Sup. Crt. App Term 2019] ).
In Daily Medical Equipment Distribution Center, Inc. v. MVAIC , a case similar to the instant matter, the Appellate Term stated:
"[i]n New York Hosp. Med. Ctr. of Queens v. Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004] ), the Appellate Division rejected MVAIC's contention, which MVAIC similarly asserts here, that the 30—day claim determination period does not begin to run until after MVAIC is satisfied that a claimant is a "qualified person" (see Insurance Law § 5202[b] ) who is also a "covered person" (see Insurance Law § 5221[b][2] ; New York Hosp. Med. Ctr. of Queens , 12 AD3d 429 ). The Appellate Division held that defenses which are subject to preclusion remain subject to the time frames set forth in the regulations applicable to claims which seek to recover first-party no-fault benefits pursuant to Insurance Law article 51" ( Daily Med. Equip. Dist. Ctr., Inc. v. MVAIC , 53 Misc 3d 148[A] ).
Recently, in T & S Med. Supply Corp. v. Motor Veh. Acc. Indem. Corp , the Appellate Term held that "(c)ontrary to MVAIC's contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff's assignor is a qualified person within the meaning of Insurance Law § 5202 (b) ( 63 Misc 3d 150 [A] [App Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ).
In this case, after it deemed the assignor "qualified," Defendant sent denials of said bills on August 9, 2016. Having received these bills in May of 2015 and June 2015, they were improperly delayed by Defendant and are therefore untimely.
Further, as to the first, second, third, fifth, sixth and seventh bills listed in the complaint, the Defendant's motion is also based on non-cooperation with requests for independent medical examinations which were scheduled for July 21, 2016, July 25, 2016 and August 8, 2016. However, such requests must "compl[y] with Insurance Department Regulations ( 11 NYCRR) § 65-3.5(d), which prescribes a 30-calendar-day time frame for the holding of IMEs" ( American Transit Ins. Co. v. Longevity Med. Supply , 131 AD3d 841 [1st Dept 2015] ). Here, as noted above, the bills were received between May 7, 2015, and May 28, 2015 and the seventh bill was received on July 7, 2015. However, the first IME was scheduled over a year later, rendering the IME requests void.
In light of Defendant's untimely denials and the untimely IME requests, Plaintiff is entitled to judgment as to the first, second, third, fifth, sixth and seventh bills listed in the complaint, with statutory interest accruing from the date that Plaintiff filed the instant action. Plaintiff may also enter judgment as to the fourth bill for the reasons previously noted.
In sum, Plaintiff may enter judgment in the amount of $1321.69, with statutory interest, attorney fees, costs, and disbursements.
This constitutes the decision and order of this court.