| New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co. |
| 2011 NY Slip Op 01628 |
| Decided on March 1, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Joseph Henig, P.C., Bellmore, N.Y., for appellants.
Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of
counsel), for respondent.
DECISION & ORDER
In an action to recover assigned first-party no-fault benefits for medical services rendered, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered July 14, 2010, as denied that branch of their motion which was for summary judgment on the first cause of action.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the plaintiff New York Hospital Medical Center of Queens, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.
The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action by submitting, inter alia, the requisite billing forms, the affidavits from its third-party biller, the certified mail receipts, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532, affd 9 NY3d 312).
In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendant’s verification requests, dated April 22, 2008, and May 22, 2008, respectively, requested “Rev. 01/04 NF5 & Assignment of Benefit Forms signed (No Stamps).” The plaintiff responded by providing exactly what was requested of it. The defendant cannot now complain that the NF5 or the Assignment of Benefits Forms provided by the plaintiff were “outdated,” as its verification requests only sought the January 2004 version of the NF5 Form and its accompanying assignment. Contrary to the Supreme Court’s conclusion, the affidavit of the defendant’s representative was insufficient to raise a triable issue of fact, as the plaintiff’s documented responses demonstrate that it [*2]complied with the defendant’s verification requests.
The defendant’s remaining contentions are without merit.
Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.
DILLON, J.P., COVELLO, FLORIO and HALL, JJ., concur.
I just tried pulling the record from App. Div. They sent it back to Nassau.
I’m sure its the typical proofs we’ve seen in the Henig cases. Don’t worry, this will continue to be ignored by the lower courts.
How can it be ignored. Its the Division. The Term has to follow it. The lower courts have to follow the Term.
I am serious. Are things as bad as I say they are? Someone please respond.
To end our streak of over a dozen appellate wins, mostly before the app term 1st and appellate divisions, the Term 2nd just vacated a default judgment we obtained against MVAIC, absent any evidence whatsoever.
This despite several very recent rulings by the App Div. 2nd dept requiring admissible proof on all points regarding curing vacatur. Amazing.
I will note that on March 2, 2011, the same court overturned the denial of the carrier’s cross-motion for summary judgment on the grounds that “Inasmuch as plaintiff submitted only a reply affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant’s cross-motion…should have been granted.” Tri-Mount v NY Cent, 2011 NY Slip Op 50335 (U).
The contrast is once again stunning regarding this court’s “implimentation” of the hearsay rule.
Sounds like it would overturn Dan Medical to me.
If there was stare decisis, I’d agree. Too bad there’s not.
Prediction, this will blow back in the Term’s face in due course. Too much data is already available.
It will be exposed in proper fashion by someone who has no direct pecuniary interest in this area.
Wednesday Oral Argument Suffolk Supreme — no court reporter of course.
“Your honor I have Court of Appeals case after Court of Appeals case dead on point that says that I can do exactly what you say I cannot do”
The Court: “You know what they say about the Court of Appeals. It’s the Court of last guess.”
I guess the judge was the court of first guess.
Wonderful justice system we have here in the State of State Farm New York or GEICO York; etc. Sun think of some good ones. Court’s insult each other.
“Your honor Justice So and So right in this very Court House held that …”
“I do not believe in repetitive foolishness”
Problem is that Justice So and So now sits at App Div.
I hate what they have done to this profession.
This is nothing new, but very confusing. The AD has consistently held this way in hospital cases and used the term “third party biller” since 2008. Although, the AD seemingly held contrary in the Carothers case that came down back in December. Bizarre.
Countrywide has standard policy and procedure to allege by affidavit of Eric Lyons that no verification responses have been received even if there is a proof of mail or if there is a certificate of mailing, and most judges in Civil, just buy this and often send the matter to trial. Countrywide policy is quite simple deny receiving anything ever. What is more absurd is that every bill sent to Countrywide receives the same cookie-cutter response; bill received, provide the NF-3 (2004 version), assignment (provide 2004 version), letter of medical necessity, corporate structure, no matter the claim. This is not the first time that Appellate Division called bullshit on Countrywide, see Westchester Med. Ctr. v. Countrywide 45 A.D.3d 676, 846 N.Y.S.2d 230 (2d Dep’t 2007).
Please note that the Apppellate Division, Second Department also decided the Art of Heaing case,which is very similar to Dan Medical.
However, I acknowledge that the decision leaves an issue of doubt that should be clarified by the Appellate Divison. Maybe they are making exceptions for hospital cases. It should also be noted that in the Carothers case, the Appellate Division, Second Department upheld Term’s decision which did not allow the testimony of the third-party biller. Maybe one brave plaintiff’s counsel should attempt to appeal a Dan Medical case to the Apellate Division.
Many a plaintiff has tried, Mitch. They won’t take them up.
As an aside, i went through a bunch of files today where the provider saved envelopes in which denials were received. Not a single denial was postmarked on the date of the denial. some geico’s were more than 1 week later.
Dave, although you did not write about it, I think that the decision by the Appellate Term, Second Department in Jamiaca Medical Supplyv . Kemper, 2011 N.Y. Slip Op. 50315(U) was wrongly decided. Proving that the supplies were delivered to the assignor should not be part of the plaintiff’s prima facie case. This decision extends Dan Medical too far and flies in the face of Fair Price. I concede that the Appellate Term went too far. Bad cases make bad law and can lead to appeals that may not necessarily turn out good for the no-fault insurer.
Plz someone warn plaintiff’s counsel that they should seek leave to appeal this App Term 2nd decision where Golia overturned a $900 verdict regarding the death of the plaintiff’s dog.
http://www.courts.state.ny.us/REPORTER/3dseries/2011/2011_50385.htm