Careplus Med. Supply, Inc. v Autoone Ins. Co., 2009 NY Slip Op 51124(U)
Although defendant denied the bills at issue on the ground that plaintiff’s assignors failed to attend scheduled IMEs, the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that plaintiff’s assignors did not appear for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Westchester Neurodiagnostic, P.C. v Allstate Ins. Co., 2009 NY Slip Op 51128(U)
Defendant asserts that the affidavit submitted by plaintiff’s billing manager was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case. We note that, contrary to defendant’s contention, proof of the assignment of benefits form is not an element of plaintiff’s prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [*2][2004]).
In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed (e.g. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dist 2007]).
A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 2009 NY Slip Op 51130(U)
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued, inter alia, that plaintiffs did not make a prima facie showing of their entitlement to judgment as a matter of law. The District Court denied plaintiffs’ motion and defendant’s cross motion, finding that defendant had failed to submit sufficient proof to support its defense that plaintiffs are fraudulently incorporated, but that discovery was outstanding. The court directed plaintiffs to provide the discovery demanded by defendant. Plaintiffs appeal from so much of the order as denied their motion for summary judgment.
Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied, albeit on other grounds.
Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 2009 NY Slip Op 51139(U)
A provider establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The affirmation of plaintiff’s “primary doctor and principal shareholder” was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.
Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant’s cross motion (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]). We pass on no other issue.
New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51140(U)
Contrary to the District Court’s conclusion, defendant was not required to show, as a prerequisite to an EBT of Ms. Anikeyeva, that plaintiff’s responses to its demand for written interrogatories were inadequate. “The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them” (Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]). Accordingly, defendant was entitled to conduct such EBT notwithstanding the fact that it had also served plaintiff with other discovery demands (see CPLR 3102; Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]; Great Wall Acupuncture, P.C. v General Ass. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]). Moreover, since defendant is asserting a Mallela defense, it was entitled to such an EBT (see Corona Heights Med. P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52185[U] [App Term, 2d & 11th Jud Dists 2008]; see also Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co, 2 Misc 3d 347, 353 [Civ Ct, Queens County 2003] ["Depositions in certain cases under the no-fault laws, for example, may be helpful in detecting instances of fraud"]).
To the extent that defendant also sought to compel production of the personal federal and state income tax returns of Ms. Anikeyeva, defendant failed to establish its entitlement to such documents since “[i]t is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). As a result, at this juncture, defendant failed to meet its burden of establishing that Valentina Anikeyeva’s personal income tax returns were properly discoverable, particularly where, as here, defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).
Inwood Hill Med., P.C. v Progressive Cas. Ins. Co., 2009 NY Slip Op 51141(U)
Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]
With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.
Bath Med. Supply, Inc. v Country Wide Ins. Co., 2009 NY Slip Op 51145(U)
However, the Civil Court erred in finding that defendant failed to properly toll the prescribed 30-day period, since the affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the verification requests by setting forth a detailed description of the standard office practice and procedure used to ensure that the verification requests were properly addressed and mailed (see Residential Holding Corp., 286 AD2d 679). For the same reason, the affidavit also established the timely mailing of defendant’s denial of claim forms (id.).
Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth different dates as the dates on which final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled. As a result, inasmuch as the affirmed peer review report was sufficient to demonstrate the existence of an issue of fact as to the medical necessity of the supplies plaintiff furnished, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
A.M. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 51147(U)
Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]). Such a defense is [*2]nonprecludable (id.).
“[T]he claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 72 [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not submit bills that entitled it to payment, correction of the defect involved herein is not permitted once litigation has been commenced (A.M. Med. Servs., P.C., 22 Misc 3d 70). Accordingly, the judgment is affirmed.