Opinion
56495/04.
Decided July 27, 2005.
Appearing for plaintiff: Gary Tsirelman, Brooklyn, NY; for defendant: The Donovan Law Firm, Wading River, NY.
Upon the foregoing cited papers, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, plaintiff's motion is granted.
In this action, plaintiff City Wide Social Work and Psychological Services, P.L.L.C. seeks to recover first-party No-Fault benefits in the amount of $987.05 for treatment allegedly provided to its assignor Ines Cardenas following an alleged accident on December 6, 2002, and $1,181.63 for treatment rendered to another assignor Carlos Acevedo following an alleged accident on March 6, 2003, plus statutory, interest, costs, and attorneys' fees. Plaintiff argues that defendant failed to timely deny its No-Fault claims.
The amount sought on this claim was amended at oral argument to reflect the partial payment by defendant.
To recover No-Fault benefits for healthcare services rendered to its assignor, a plaintiff establishes its prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that the statutory claims form, setting forth the fact and the amount of the loss sustained, was submitted to the defendant, and that payment of no-fault benefits is overdue. See NYCRR § 65-3.8(c); Contemp. Med. Diag. Treatment, P.C. v. GEICO, 6 Misc 3d 137(A) [App Term, 2d and 11th Jud Dists 2005]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A) [App Term, 2d 11th Jud Dists 2004]. If the plaintiff makes out its prima facie case, the burden then shifts to the defendant to raise a triable issue of fact.
The Court finds that plaintiff has made out its prima facie case for entitlement to summary judgment, thereby shifting the burden to defendant to raise a triable issue of fact. Defendant's assertion that plaintiff has failed to establish its prima facie case because of alleged defects in its proof of claim and assignment of benefits is without merit because defendant has waived any objections to plaintiff's proof of claim or assignment form by not requesting verification of either during the prescribed 30-day period. See Park Health Ctr. v. Eveready Ins. Co., 2001 NY Slip Op 40665(U) [App Term, 2d and 11th Jud Dists 2001]; Mt. Sinai Hosp. v. Triboro Coach, 263 AD2d 11 [2nd Dept 1999]. Moreover, contrary to defendant's contention, it is not part of plaintiff's prima facie case to prove the medical necessity of the treatment rendered. See Nir v. Allstate Ins. Co., 7 Misc 3d 544, 796 NYS2d 857, 859 [Civ Ct, Kings County 2005].
Defendant's opposition addresses only the claim pertaining to plaintiff's assignor Carlos Acevedo, but fails to address the claim pertaining to assignor Ines Cardenas. Therefore, as to the latter, plaintiff is entitled to summary judgment. As to the claim pertaining to Carlos Acevedo, defendant's opposition fails to raise a triable issue of fact, thereby entitling plaintiff to summary judgment on that claim as well. The affidavits submitted by defendant, whether taken together or separately, fail to establish that defendant timely denied the claim. The affidavit of Jay Santiago, a mailroom supervisor, describes defendant's internal and external mail pickup, but does not discuss the mailing of the particular denial at issue. The affidavit of Gary Coore, a litigation supervisor, states that based on defendant's regular course of business, the denial at issue was timely generated and mailed, but fails to describe the source of his knowledge and how he knows that proper procedure was followed here. See Contemp. Med. Diag. Treatment, P.C. v. GEICO, 6 Misc 3d 137(A) [App Term, 2nd 11th Jud Dists 2005]; A.B. Medical Services PLLC v. CNA Ins. Co., 1 Misc 3d 137(A) [App Term 1st Dept 2004]; New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [App Term, 2d 11th Jud Dists 2004], lv denied, 3 Misc 3d 609; Jul. Pol. Corp. v. Amer. Transit Ins. Co., 2003 NY Slip Op 51153(U) [App Term 2nd 11th Jud Dists 2003]; A.B. Med. Svcs. PLLC v. Farm Fam. Cas. Ins. Co., 5 Misc 3d 333 [NY City Civ Ct 2004].
Since defendant has failed to prove that it timely denied the claim pertaining to assignor Carlos Acevedo, defendant is precluded from asserting a defense on any grounds other than fraud or lack of coverage. See See Central Gen. Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195; Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 [2nd Dept 2002]; Amaze Med. Supply, Inc. v. AIU Ins. Co., 5 Misc 3d 139(A) [App Term, 9th 10th Jud Dists 2004]; S M Supply, Inc. v. Nationwide Mut. Ins. Co., 3 Misc 3d 138(A) [App Term, 2nd 11th Jud Dists 2004]; New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [App Term, 2d 11th Jud Dists 2004]. Although defendant raises a defense of fraud, the Court finds that defendant fails to allege facts, in admissible form and with the requisite particularity, to create triable issues of fraud. See A.B. Med. Servs., P.L.L.C. v. State-Wide Ins. Co., 7 Misc 3d 136(A) [App Term, 2nd 11th Jud Dists 2005]; A.B. Medical Servs., PLLC v. State Farm Mutual Auto Ins. Co., 3 Misc 3d 130(A) [App Term, 2d 11th Jud Dists 2004]; A.B. Med. Servs., P.L.L.C. v. Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2nd Dept 2003].
Defendant's litigation specialist, Mr. Coore, submits an affidavit listing the following grounds for suspicion based on his review of the file: There were multiple injured parties treated at the same multi-specialty clinic four or five times per week; the loss was initially reported to defendant by plaintiff rather than the assignor; the assignor herein was not listed on the police report as a passenger, and the police officer allegedly told defendant's unsworn investigator "that no one identified by the name Carlos Acevedo identified himself to the police officer at the accident which occurred on 03-06-03." Defendant attaches an uncertified copy of the police report. Although the absence of Carlos Acevedo from the scene would suggest fraud, the only evidence submitted to support this allegation is inadmissible hearsay. "While hearsay evidence may be admissible in opposing a motion for summary judgment, there must be an acceptable excuse for failure to tender the proof in admissible form." See A.B. Med. Servs., P.L.L.C. v. State-Wide Ins. Co., 7 Misc 3d 136(A) [App Term, 2nd 11th Jud Dists 2005] (citing Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790; Allstate Ins. Co. v. Keil, 268 AD2d 545, 702 NYS2d 619 [2nd Dept 2000]). No such excuse is proferred here.
For the foregoing reasons, defendant has failed to meet its burden of demonstrating triable issues of fact, and plaintiff is entitled to summary judgment. Accordingly, plaintiff is awarded summary judgment in the amount of $2,168.68 plus statutory interest, costs, and attorneys' fees.
This is the Decision and Order of the Court.