Opinion
724944-18/KI
10-29-2020
BRONX CHIROPRACTIC REHABILITATION, P.C., a/a/o Jean-Louis, David, Plaintiff, v. PROGRESSIVE INSURANCE COMPANY, Defendant.
Attorney for Plaintiff: Oleg Rybak, Esq., The Rybak Firm, PLLC, 1810 Voorhies Ave., 3rd Floor, Ste. 7, Brooklyn, NY 11235 Attorney for Defendant: Erin L. McFadzen, Esq., The Law Offices of Perry and Frankson, 3 Dakota Drive, Suite 201, North New Hyde Park, NY 11042
Attorney for Plaintiff: Oleg Rybak, Esq., The Rybak Firm, PLLC, 1810 Voorhies Ave., 3rd Floor, Ste. 7, Brooklyn, NY 11235
Attorney for Defendant: Erin L. McFadzen, Esq., The Law Offices of Perry and Frankson, 3 Dakota Drive, Suite 201, North New Hyde Park, NY 11042
Consuelo Mallafre Melendez, J. In this No-Fault action seeking reimbursement for medical services, Plaintiff medical provider moves, inter alia , for and order granting summary judgment pursuant to CPLR 3212. Defendant insurer also moves, inter alia , for summary judgment pursuant to CPLR 3212.
The court finds that Plaintiff established its prima facie showing of entitlement to summary judgment. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Here, in support of its motion, Plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C. in which he establishes that the claim forms had been timely and properly mailed to Defendant (see Compass Medical, P.C. v. Farm Family Cas. Ins. Co. , 38 Misc 3d 142 [A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2013] ). Accordingly, Plaintiff established its prima facie entitlement to summary judgment and the burden shifted to Defendant to raise a triable issue of fact ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
The court finds that Defendant failed to raise a triable issue of fact in opposition to Plaintiff's motion and to establish their own entitlement to summary judgment pursuant to CPLR 3212. Defendant asserts that they properly denied Plaintiff's claims for failure to provide a requested verification within 120 days of the initial request and that Plaintiff's case must be dismissed as premature. However, Defendant fails to submit adequate evidence in support of their requests for verification. Defendant relies on attached copies of the verification request letters as well as the affidavit of their Litigation Representative, Joseph M. Andre, who establishes mailing of the letters. In the verification request letters at issue, Defendant states that they requested that the assignor provide a recorded statement via a scheduled phone call. Defendant claims that the assignor failed to respond to the calls they scheduled in all three verification request letters. Accordingly, Defendant asserts that dismissal of Plaintiff's case is appropriate based on outstanding verification.
In the first verification letter, the recorded phone statement was scheduled to take place on May 16, 2016 at 10:00 a.m. On May 17, 2016 Defendant mailed a second verification request letter scheduling a recorded phone statement to take place on May 30, 2016 at 10:00 a.m. On May 31, 2016, Defendant mailed a third verification request scheduling a recorded phone statement to take place at 10:00 a.m. on June 10, 2016.
However, based on the language contained in the verification request letters, Defendant was required to call the assignor on a certain date, at a certain time, to a certain telephone number in order to obtain the requested information: "In order to determine your eligibility for benefits, all benefits remain delayed pending your cooperation with our request for a recorded statement. You will be contacted at the number below to provide a statement on the date and time indicated ." Emphasis added.
Although Defendant established that the verification requests were mailed, they failed to establish that a representative placed the phone call which they claim the assignor failed to answer on each of the scheduled dates. As a result, the verification requests are incomplete.
In a similar Appellate Term case, Dilon Medical Supply Corp. v. State Farm Mut. Auto. Ins. Co. , the defendant insurer also denied the plaintiff's claim based on outstanding verification ( 13 Misc 3d 141 [A], 831 N.Y.S.2d 358 [App. Term, 2nd & 11th Jud. Dists. 2006] ). The Appellate Term found that the defendant insurer failed to submit adequate proof to support their claim of mailing the verification requests. As a result of this evidentiary deficiency, the Appellate Term found that the defendant's time to pay or deny the claim was not tolled and their denials were untimely.
Although there is no case that addresses the specific issue herein, the reasoning in Dilon is applicable to the issue of inadequate proof of verification. Here, while Defendant establishes the mailing of the verification requests, they do not establish the substantive portion of the verification inquiry. Thus, the incomplete verification requests did not toll Defendant's time to pay or deny the claim and Defendant is "precluded from raising most defenses as a result of its untimely denial" ( Dilon Medical Supply Corp. v. State Farm Mut. Auto. Ins. Co. , 13 Misc 3d 141 [A], 831 N.Y.S.2d 358 ). Accordingly, Defendant both fails to meet their own prima facie burden for summary judgment and raise an issue of fact in opposition sto Plaintiff's motion based on its outstanding verification argument (see Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; St. Anna Wellcare, P.C. v. Geico Ins. 56 Misc. 3d 133 [A], 63 N.Y.S.3d 307 [App. Term, 2d Dept., 11th & 13th Jud. Dists 2017].
Based on the foregoing, Plaintiff's motion for summary judgment pursuant to CPLR 3212 is granted. Defendant's motion for summary judgment pursuant to CPLR 3212 to dismiss Plaintiff's case as premature is denied.
This constitutes the decision and order of this court.