Opinion
CV-720481-18/KI
06-17-2020
Longevity Medical Supply, Inc. a/a/o Waiters, Saddiq, Plaintiff, v. Progressive Insurance Company, Defendant.
Law Offices of Rachel Perry (Marhall D. Arnett of counsel), Lake Success, for defendant. The Rybak Firm, PLLC (Oleg Rybak of counsel), Brooklyn, for plaintiff.
Law Offices of Rachel Perry (Marhall D. Arnett of counsel), Lake Success, for defendant. The Rybak Firm, PLLC (Oleg Rybak of counsel), Brooklyn, for plaintiff. Richard Tsai, J.
In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the first, second, and third causes of action, on the ground that plaintiff's assignor failed to appear for an independent medical examination (IME) scheduled on August 28 and September 11, 2017. Plaintiff opposes the motion and cross-moves for summary judgment in its favor. Defendant opposes the cross motion.
BACKGROUND
On June 16, 2017, plaintiff's assignor, Saddiq Waiters, was allegedly injured in a motor vehicle accident (see defendant's exhibit A, complaint ¶ 2).
At issue in this lawsuit are four bills that plaintiff submitted to defendant for medical equipment/supplies allegedly provided to plaintiff's assignor on July 10, 2017, August 15, 2017, and August 23, 2017 (two bills were submitted for August 23, 2017). Defendant allegedly received these bills on August 21, 2017, September 1, 2017, and September 12, 2017, respectively (see defendant's exhibit C, NF-3 forms and denial of claim forms). Defendant "concedes the balance of $200.00" for the date of service on July 10, 2017 (affirmation of defendant's counsel in support of motion ¶ 12).
IME on August 28, 2017
By a letter dated August 16, 2017 from Exam Works, Inc., plaintiff's assignor was scheduled to appear for an IME on August 28, 2017 at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist (see defendant's exhibit D, scheduling letter). According to Handelsman, he was in the office from 7:35 p.m. to 8:10 p.m., and plaintiff's assignor did not appear for the IME (see defendant's exhibit E, affidavit of Alan Handelsman ¶ 5).
Defendant's counsel refers to the affidavits of John Johnson, DC and Karen Thomas, DC, which were purportedly included in exhibit E (affirmation of defendant's counsel in opposition to cross motion ¶ 21). However, these affidavits were not included in the papers submitted to court, and in any event, the IME scheduling letters indicated that the IMEs were scheduled before Alan Handelsman and Jane Yiu.
Follow-up IME on September 11, 2017
By a letter dated August 30, 2017 from Exam Works, Inc., plaintiff's assignor was scheduled to appear for an IME on September 11, 2017 at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant's exhibit D, scheduling letter). The record does not contain any affidavit from Jane Yiu. According to a litigation manager from Exam Works, Inc., "On 8/29/17 and 9/12/17, a representative from the above-named Examiner's office informed my office that claimant did not appear for the scheduled MEs" (see defendant's exhibit D, aff of Georgianna Michios).
Denial of Claim Forms
On September 13, 2017, defendant allegedly partially denied and partially paid $677.37 for the date of service on July 10, 2017 (defendant's exhibit C, mailing report). The Explanation of Benefits states, in relevant part, "In accordance to the New York No-Fault Law, Regulation 68, this base fee was calculated according to the New York Workers' Compensation Board Schedule of fees, pursuant to Regulation 83 and/or Appendix 17-C of 11 NYCRR" (id., Explanation of Benefits).
On September 20, 2017, defendant allegedly mailed to plaintiff a denial of claim form for the date of service on August 15, 2017 (defendant's exhibit C, proof of mailing report). On September 28, 2017, defendant allegedly mailed to plaintiff denial of claim forms for the two bills for the date of service on August 23, 2017 (id.). The Explanation of Benefits accompanying each denial of claim form identically states, "Failure to submit to multiple requests for Medical Examinations is a violation of both this policy's contractual Duties and Conditions under Proof of Claim that precede coverage under Reg 68, Section 65-1. No fault benefits under this policy are denied" (id.)
The table below summarizes the claims, IMEs, and denials at issue: Date of Service Bill Received Scheduling Letter Sent EUO Date Scheduling Letter Sent 2nd EUO Date Date of Denial Date of Mailing 7/10/178/21/178/16/17 (pre-claim)8/28/178/30/179/11/179/12/179/13/17 8/15/179/1/178/16/17 (pre-claim)8/28/178/30/17 (pre-claim)9/11/179/18/179/20/17 8/23/179/12/178/16/17 (pre-claim)8/28/178/30/17 (pre-claim)9/11/179/27/179/28/17 8/23/179/12/178/16/17 (pre-claim)8/28/178/30/17 (pre-claim)9/11/179/27/179/28/17
Defendant's exhibit C, NF-3 Forms.
Id., denial of claim forms.
Defendant's exhibit D.
Id..
Id..
Defendant's exhibit C.
Id., denial of claim forms.
Id., mailing reports.
The Instant Action
On May 11, 2018, plaintiff commenced this action asserting four causes of action to recover unpaid first-part no-fault benefits for the services rendered, plus interest, and a fifth cause of action for attorneys' fees (see defendant's exhibit A, summons and complaint). The first, second, and third cause of action relate to the dates of service on August 23, 2017, August 23, 2017 and August 15, 2017, respectively (id.). The fourth cause of action concerns the date of service on July 1, 2017 (id.).
Defendant allegedly answered the complaint on May 25, 2018 (see defendant's exhibit A, affidavit of service of answer).
DISCUSSION
"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the
required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action"(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
Defendant's Motion for Summary Judgment
"The appearance of the insured for IMEs at any time is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). "Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs 'when, and as often as, the [insurer] may reasonably require'" (id. at 722, citing 11 NYCRR 65-1.1).
To meet its prima facie burden, the defendant-insurer must establish that it properly mailed scheduling letters for independent medical examinations (IMEs) to plaintiff's assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term,2d Dept, 9th & 10th Jud Dists 2018]).
IME on August 28, 2017
According to defendant, plaintiff's assignor was scheduled to appear for an IME on August 28, 2017 at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist, by a letter dated August 16, 2017 from Exam Works, Inc., (see defendant's exhibit D, scheduling letter). To establish proof of mailing, defendant submitted the affidavit of Georgianna Michios, a litigation manager at Exam Works, Inc. (see id., Michios aff).
As plaintiff correctly indicates, the affidavit of the litigation manager was insufficient to show proof of mailing based on personal knowledge or in accordance with a standard office practice or procedure (Parisien v Maya Assur. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50771[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Ying E. Acupuncture, P.C. v Global Liberty Ins., 20 Misc 3d 144[A], 2008 NY Slip Op 51863[U] [App Term, 2d & 11th Jud Dists 2008]). To the extent that proof of mailing is based on personal knowledge, the litigation manager does not state in her affidavit that she either mailed the scheduling letter herself or saw another person mailing the scheduling letter. Rather, the litigation manager stated that the appointment letter was stamped and delivered to the United States Post Office by the mail department, which appears not to be her office (Michios aff ¶ 4).
To the extent that proof of mailing is based upon a standard office practice or procedure, the affidavit of the litigation manager was not sufficient to establish when the scheduling letter was mailed. The affidavit states, in relevant part, "All requests printed out during any given day get placed in a U.S. Post Office Depository by a mail-room employee the same day that they are generated and stamped" (id.). However, the litigation manager does not state when the scheduling letter was generated in accordance with the office practice or procedure; the affidavit does not state that the date that appears on the scheduling letter is the date that the letter was generated.
Even if defendant had demonstrated timely mailing of the scheduling letter, defendant did not establish that plaintiff's assignor failed to appear at the IME. Defendant submitted the affidavit of Alan Handelsman, a licensed acupuncturist (defendant's exhibit E). The affidavit indicates that the basis of Handelmsan's knowledge is "based upon my review of electronic and physical files pertaining to the claimant" (defendant's exhibit E, Handelsman aff ¶ 4). However,
"it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness's testimony as to the contents of the records is inadmissible hearsay'"(Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and quotation marks omitted]). Here, Handelsman did not submit any business records.
The affidavit also states, "In addition, I was in the scheduled examining office on 8/28/17 from 7:35 PM to 8:10 PM and I have personal knowledge that Saddiq Waiters did not appear" (Handelsman aff ¶ 5). However, the court agrees with plaintiff's counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
The affidavit does not state that no one appeared at all before Handlesman from 7:35 p.m. until 8:10 p.m. Because Handelsman swore that he was present in the office at the time the IME was to be conducted, he would have known, by the use of his own senses, whether a person appeared in front of him at the time IME was scheduled. However, the affidavit is conclusory as to the basis for Handelsman's knowledge of the identity of Saddiq Waiters (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ["While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff's assignor for the examinations"]). There is nothing in the record to indicate that Handelsman had an existing relationship with Waiters or had previously met Waiters so as to be able to recognize that person. If Handelsman had not previously met Saddiq Waiters, then his knowledge of Waiters's identity would not be based on personal knowledge.
Follow-up IME on September 11, 2017
By a letter dated August 30, 2017 from Exam Works, Inc., plaintiff's assignor was scheduled to appear for an IME on September 11, 2017 at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant's exhibit D, scheduling letter). As discussed above, the affidavit of the litigation manager from Exam Works, Inc. was insufficient to establish proof of mailing of this scheduling letter based on personal knowledge or in accordance with an office practice or procedure (Parisien, 59 Misc 3d 147[A], 2018 NY Slip Op 50771[U]; Ying E. Acupuncture, P.C., 20 Misc 3d 144[A], 2008 NY Slip Op 51863[U]).
Defendant failed to establish that plaintiff's assignor failed to appear at the IME on September 11, 2017. As plaintiff correctly points out, defendant did not submit an affidavit from someone with personal knowledge of the failure to appear (see affirmation of plaintiff's counsel in support of cross-motion ¶¶ 128, 146). Defendant did not submit an affidavit from Yiu, or anyone else from the examiner's office who would have seen plaintiff's assignor at the scheduled IME exam. As plaintiff's counsel also indicates, the statement purportedly made by a representative from the examiner's office to a litigation manager at Exam Works, Inc. of the failure to appear at the IME is hearsay (see id. ¶ 128; see Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50750[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Timeliness of the Denial of Claim Forms
"[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant's proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim"(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).
With respect to the bills for the dates of service on August 15, 2017 and August 23, 2017, defendant maintains that these bills were received on September 1 and September 12, 2017, respectively. According to defendant, the denial of claim forms for these bills were mailed on September 20 and 28, 2017, and thus within the 30-day period.
To establish proper mailing, defendant submits the affidavit of Lori Curtin, a litigation representative (see defendant's exhibit B, aff of Lori Curtin) and business records of mailing reports of the denial of claim forms (see defendant's exhibit C). According to Curtin, the denial of claim forms were printed and mailed from facilities in either Colorado Springs, Colorado or Highland Heights, Ohio (see Curtin aff ¶ 3). Curtin's affidavit and the mailing reports established proof of mailing of the denial of claim forms on September 20 and September 28, 2017, in accordance with a standard office procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] (App Term, 2d Dept, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).
Contrary to plaintiff's arguments, Curtin demonstrated first-hand knowledge of the mailing procedures, because she averred that she has been trained in defendant's claims handling and mailing procedures, and that she has personally observed the mailing procedures at the mailing facilities in both Colorado and Ohio (Curtin aff ¶ 2). Although plaintiff's counsel points out that Curtin did not specify the mailing facility from which the denial of claim forms had been mailed, Curtin stated that she has personal knowledge of the mailing procedures at both facilities (id.). In any event, Curtin explained how one could ascertain which mailing facility sent the denial of claim forms. Curtin's affidavit also properly laid the foundation for the admission of the mailing receipts of the denial of claim forms as business records (see id. ¶¶ 3, 3 [g]).
According to Curtin, the mailing facility can be determined from the sixth and seventh digits of the Envelope ID (Curtin aff ¶ 3 [m]). "If the sixth and seventh digits are 00 or 02, the document was mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the document was mailed from Colorado Springs, Colorado (id.). Here, the mailing reports indicate that the Envelope IDs for the denial of claim forms for the dates of service on August 15, 2017 and August 23, 2017 were "CMBPI02H000540" and "CMBPG00P00018", respectively (defendant's exhibit C in support of motion [emphasis added]).
Plaintiff's counsel also asserts that Curtin stated that she had "personal knowledge of the defendant's file 'maintained at that [Albany, NY] office'" (affirmation of plaintiff's counsel in support of cross-motion ¶ 70 [emphasis in original]). However, plaintiff's counsel does not reference any paragraph of Curtin's affidavit, and the quoted words do not, in fact, appear anywhere in Curtin's affidavit. Rather, Curtin states that that her knowledge is based "on a complete review of the documents contained in the electronic claims file, which is maintained in the ordinary course of business of Defendant and which is Defendant's duty to maintain said file" (Curtin aff ¶ 2). Nowhere in her affidavit does Curtin state that the electronic file which she reviewed pertained only to the records at the Albany, NY office (see id. ¶¶ 2, 5).
Plaintiff's counsel also purports to quote extensively from Curtin's affidavit (see affirmation of plaintiff's counsel in support of cross-motion ¶ 74), but the quoted statements do not appear in Curtin's affidavit.
As plaintiff's counsel points out, "the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed" (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). Prior cases have ruled that the office procedure was inadequate where, for example an employee has not checked that the names and addresses on envelopes matched the names and addresses of the intended recipients (see Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [2d Dept 1994] ["when reliance is placed on a mailing sheet, testimony that an employee normally checks the names and addresses on the envelopes with those on the mailing sheet is sufficient to constitute proof of mailing"]).
Here, Curtin states that "[t]he information appearing in the NF-10 and the EOB regarding the recipient, recipient address, patient, dates of service and the amount bill is obtained from the bill(s)/cover letter submitted by Plaintiff," and that "the Progressive claims representative electronically creates the document(s) to be mailed" (Curtin aff ¶ 3 [i], [l], [n]). The printing/mailing system is automated, and it is reviewed, inspected, and monitored by Progressive employees (id. ¶ 3 [a], [q]). The name and address of the recipient and date of mailing are captured electronically by defendant's computer onto mailing reports which cannot be altered once captured (id. ¶ 3[b]). Given these procedures, the court is satisfied this office procedure is geared to ensure that the denial of claim forms were properly addressed and mailed. It is undisputed that the name and address on the mailing reports and on the denial of claims forms were correct.
Therefore, defendant timely issued denial of claims for the dates of service on August 15 and August 23, 2017.
Nevertheless, as discussed above, defendant did not establish that plaintiff's assignor failed to appear at the IMEs on August 28 and September 11, 2017. Accordingly, defendant's motion for summary judgment dismissing the first through third causes of action is denied.
Plaintiff's Cross Motion for Summary Judgment
"A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law" (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128 [A], 2011 NY Slip Op 51292 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant to raise a triable issue fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Here, plaintiff established prima facie entitlement to summary judgment by submitting the affidavit of Eugene Nemets, the owner of plaintiff, who established that bills were timely submitted to defendant and that payment of no-fault benefits was overdue (see plaintiff's exhibit 4 in support of cross-motion; Nyack Hosp. v Metro. Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]). Nemets stated the dates when each of the bills at issue were mailed to defendant, which were all within 45 days of the dates of the service (see plaintiff's exhibit 4 in support of cross motion, Nemets aff ¶¶ 34-35, 40-41, 43-44]). His affidavit also established that the bills were mailed in accordance with a standard office procedure (see St. Vincent's Hosp. of Richmond v Govt. Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 22 Misc 3d 133 [A], 2009 NY Slip Op 50224 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]. According to Nemets, the bills were neither paid nor denied within 30 days (Nemets aff ¶¶ 36, 42, 45).
Assuming, for the sake of argument, that plaintiff's submissions did not establish proof of mailing, any deficiencies in plaintiff's proof of mailing were cured by defendant's submission of the denial of claim forms in defendant's motion papers, which admitted receipt of plaintiff's bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135 [A], 2016 NY Slip Op 51434 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).
As to the three bills for the dates of service on August 15 and August 23, 2017, defendant proved that it timely denied those claims. However, as discussed above, defendant did not establish that plaintiff's assignor twice failed to appear for an IME. The issue presented is whether the timely denials warrant denial of plaintiff's cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient.
The Appellate Term, Second Department has issued two decisions with conflicting results. In Rockaway Medical and Diagnostic, P.C. v Country-Wide Insurance Company (29 Misc 3d 136[A], 2010 NY Slip Op 52012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), the plaintiff moved for summary judgment in its favor against an insurer, and the insurer opposed the plaintiff's motion on the ground of lack of medical necessity. The Appellate Term found that, contrary to the insurer's argument, the plaintiff met its prima facie burden (id. at *1). Although the Appellate Term found that the insurer had proved that it had timely denied the claim for lack of medical necessity, the Appellate Term awarded the plaintiff summary judgment because the peer review report was from a nurse, which was insufficient to raise a triable issue of fact as to medical necessity (id. at *2).
Three years later, the Appellate Term, Second Department reached the opposite result in Shara Acupuncture, P.C. v Allstate Ins. Co. (41 Misc 3d 129 [A], 2013 NY Slip Op 51731[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). There, the plaintiff moved for summary judgment in its favor against the insurer on six causes of action, and the insurer raised the defense of a fee schedule. The court below denied the plaintiff's motion for summary judgment and instead granted the defendant reverse summary judgment dismissing all six causes of action (id.). On appeal, the Appellate Term found that the insurer timely denied the claims, but it reinstated the second cause of action, because the insurer failed to address whether that claim had been paid in accordance with the fee schedule. Although the insurer submitted no evidence as to the fee schedule defense, the Appellate Term denied the plaintiff's motion for summary judgment, reasoning, "As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant's denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim" (id.).
Under Rockaway Medical and Diagnostic, P.C., once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds (2010 NY Slip Op 52012[U]). Under Shara Acupuncture, P.C., once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant's receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff's motion for summary judgment (2013 NY Slip Op 51731[U]). Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment (see id.). Shara Acupuncture, P.C. controls here (id.). As discussed above, the plaintiff's prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-day period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp, 32 Misc 3d 128 [A], 2011 NY Slip Op 51292 [U]). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely denial (see e.g. Westchester Med. Ctr. v Nationwide Mut. Ins. Co.,78 AD3d 1168 [2d Dept 2010] [defendant made a partial payment and partial denial within 30 days after receipt of the bill]), then the court should consider whether plaintiff met the prima facie burden under the second method (see Longevity Med. Supply, Inc. v Global Liberty Ins., 67 Misc 3d 135[A], 2020 NY Slip Op 50527[U] [App Term, 2nd Dept, 2d, 11th & Jud Dists 2020]).
Here, the plaintiff's prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-day period, and the defendant raised a triable issue of fact as to whether the claims were timely denied. Because plaintiff had not demonstrated that the denial was conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor as to the bills for the dates of service on August 15 and August 23 2017. Plaintiff's cross motion for summary judgment is therefore denied, in part, as to the first, second, and third causes of action.
As to the fourth cause of action, defendant conceded its liability for the bill for the date of service on July 10, 2017, which it had partially paid (affirmation of defendant's counsel in support of motion ¶ 12). Although defendant conceded the balance of $200.00, the difference was, in fact, $240.00. Plaintiff had billed $917.37 and defendant paid $677.37 (see defendant's exhibit C, denial of claim form). Therefore, plaintiff is entitled to summary judgment on the fourth cause of action against defendant, in the amount of $240.00.
Plaintiff is also entitled to prejudgment interest on the fourth cause of action at the rate of 2% per month, from May 11, 2018, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after receipt of the denial of claim forms dated May 23, 2017 (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).
Because plaintiff prevailed against defendant on the fourth cause of action, plaintiff is also entitled to recover attorneys' fees from defendant (11 NYCRR § 65-4.6 [d]). However, partial summary judgment is granted in plaintiff's favor as to liability only on the fifth cause of action, because it remains to be seen whether plaintiff will be entitled to attorneys' fees with respect to the other bills.
In the prayer for relief in its cross motion, plaintiff's counsel incorrectly asserted that plaintiff was entitled to a maximum of $850 in attorneys' fees per cause of action. However, each bill was asserted as a separate cause of action. Following the opinion of the Superintendent of Insurance, the Court of Appeals expressly rejected the calculation of attorneys' fees on a per bill basis; the award of attorneys' fees is calculated as 20% of the aggregate amount of all bills in the action pertaining to a single insured, plus interest, subject to a maximum of $1,360 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; 11 NYCRR § 65-4.6 [d]). --------
CONCLUSION
Upon the foregoing cited papers, it is hereby
ORDERED that defendant's motion for summary judgment dismissing the complaint is denied; and it is further
ORDERED that plaintiff's cross motion for summary judgment in its favor against defendant is GRANTED IN PART TO THE EXTENT that plaintiff is granted summary judgment in its favor and against defendant on the fourth cause of action in the amount of $240.00, plus prejudgment interest at the rate of 2% per month, from May 11, 2018; and plaintiff is granted partial summary judgment as to liability only on the fifth cause of action; and it is further
ORDERED that the remainder of plaintiff's cross motion for summary judgment is otherwise denied, and the action shall continue.
This constitutes the decision and order of the court. Dated: June 17, 2020 New York, New York ENTER: ____/S/__________ RICHARD TSAI, J. Judge of the Civil Court