It’s been an unusually slow, busy week. It started off with me, my wife, and the 15-month-old, heading to the doctor to see if the kid needs tubes in her ears. She does. Those that are familiar with them understand that tubes are relatively routine and non obtrusive. Me, not being familiar with them, and being too busy/confused/lazy to look it up, was under the impression that they are something different.
Crazy, right? That’s what I pictured in my head, except the tubes were skin color. That’s how my week started. [Edit: That isn't a picture of my kid].
A few cases came out today. Nothing big.
Alur Med. Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 51053(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, 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 ). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The 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 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). [*2]
In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 ; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.
If the defense is a 45-day-rule defense, then the defendant must have attached a denial to its motion, because that particular defense requires a timely denial and the denial contain certain ameliorative language. Otherwise, the defense was entirely unsupported. My guess is that the defense was unsupported. However, if the defendant attached a denial, then that would cure the defect in the mailing. Something is weird here.
Since the court makes much ado of the discrepancy here, a discrepancy between a defendant’s denial and its affidavit should require the same result. For example, where a denial indicates one return address and the affidavit claims that the denials were mailed from another return address. What if the addresses are from different states? Doesn’t that have to be accounted for?
Man do I love footnotes.
 Magnezit Med. Care, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 51054(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010)