Category: [App. Term., 9th 10th Jud Dists]

Flatlands Acupuncture, P.C. v Fireman's Fund Ins. Co. 2011 NY Slip Op 21133 (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, by order to show cause, to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations. The Civil Court granted the motion, and this appeal by plaintiff ensued.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed "from the time the cause of action accrued to the time the claim is interposed" (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on August 29, 2007 (CCA 400) and not, as defendant alternatively claims, on August 3, 2007 (the date of the summons and complaint) or on November 28, 2007 (the date of service on the New York State Department of Insurance). The parties agree that the six-year statute of limitations for contract actions is applicable to the instant case (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). Consequently, the statute of limitations bars any claim that accrued prior to  August 29, 2001.

In order to make its prima facie showing, defendant was required, inter alia, to establish the date when the cause of action accrued (see Swift v New York Med. Coll., 25 AD3d 686 [2006]), i.e., when plaintiff possessed "a legal right to demand payment" (Matter of Prote Contr. Co. v Board of Educ. of City of NY, 198 AD2d 418, 420 [1993]). In the no-fault context, the cause of action accrues when payment of no-fault benefits becomes "overdue" (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]).

Upon a motion to dismiss pursuant to CPLR 3211 (a) (5), a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815; Sabadie v Burke, 47 AD3d 913 [2008]). While plaintiff did not explicitly set forth in its complaint the date when each claim form was submitted or when each claim sought therein accrued, it averred that the accident occurred "on or about October 23, 2000," that the claim forms in question were "timely submitted to the Defendant," and that defendant "did not timely deny" the claims "nor did it timely request verification." In moving to dismiss, defendant argued that even if all of plaintiff's assertions are true, the action is untimely.

Defendant was required to "either pay or deny the claims in whole or in part" within 30 days after the claim forms were received (see former Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3]).

There are, therefore, two methods to compute the accrual date in the case at bar: the first is measured, in part, from the last date on which written notice of the accident must be given to the insurer, and the second is measured, in part, from the date the services were rendered. Since the accident occurred on or about October 23, 2000, and the action was commenced on August 29, 2007, it is clear that plaintiff does not benefit by using the first computation method.

Using the second computation method to ultimately arrive at the accrual dates, the calculations begin by determining when, at the latest, a claim form was required to be submitted for each service rendered. We note that the dates of the services for which plaintiff sought reimbursement ranged from October 27, 2000 through April 24, 2001. Plaintiff had 180 days from the date each service was rendered to timely submit a claim seeking reimbursement therefor, and defendant had 30 days from its receipt to either pay or deny such claim. Consequently, accepting the truth of plaintiff's allegations that it timely submitted the claims and that defendant did not timely deny them, the accrual date, or the date that payment of no-fault benefits became overdue for each service for which reimbursement was sought, was, at the very latest, 210 days after each service was rendered, and plaintiff was required to bring its action within six years thereafter (CPLR 213 [2]). Accordingly, since this action was commenced on August 29, 2007, plaintiff was barred from seeking reimbursement for services rendered more than six years and 210 days prior to August 29, 2007. Upon a review of the complaint, we find that, while defendant's motion to dismiss was properly granted as to the earlier claims, defendant did not meet its initial burden of demonstrating that the action was untimely with respect to the March 8, 2001 claim for $540 (dates of service 02/01/01 – 02/26/01), the April 6, 2001 claim for $630 (dates of service 03/02/01 – 03/31/01), and the May 8, 2001 claim for $540 (dates of service 04/03/01 – 04/24/01). Although the dissenting Justice points to the fact that some of the claim forms submitted to defendant were "date stamped" as having been received by defendant's claims management company on a certain date, and that such date should therefore represent the date from which the accrual of the cause of action could be computed, in the absence of an affidavit of defendant's claims representative or of someone with personal knowledge of defendant's standard practice and procedure explaining when and by whom such documents were date-stamped, we are not inclined to state definitively that a particular claim form was actually received by defendant on the date stamped and that such date would therefore represent the date from which to measure the accrual date. While under some circumstances,, a date stamped on a document might be used to contradict the assertions made by a party offering such document, under the circumstances presented herein, we find no basis, as the dissenting Justice apparently does, to give defendant movant the benefit of using the date stamped on the documents in question in order to bolster defendant's position. Indeed, a party could readily backdate any document to give the impression that is was received on a certain date were we not to require said party to attest to the underlying facts surrounding the stamping of the document. Furthermore, even if we were to consider such stamped document as indicative of the date of its receipt, we note that there is no date stamped on the March 8, 2001 claim for $540 (dates of service 02/01/01 – 02/26/01). Accordingly, in our opinion, the order should be modified to the extent indicated.

We note that plaintiff's argument that it was error for defendant to proceed by way of an order to show cause and for the Civil Court to sign the order to show cause is without merit. Nor is there merit to plaintiff's contention that defendant failed to lay a proper foundation for the exhibits attached to its motion papers, since it was proper for defense counsel to use his affirmation as the vehicle for the submission of the annexed documents in support of the relief requested (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).

Note the dissent. 

Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 50601(U) (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

Defendant denied all of the claims at issue on the ground that the assignors had failed to attend scheduled examinations under oath (EUOs). In order for defendant to make a prima facie showing of its entitlement to summary judgment based on the assignors' failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignors failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In support of its cross motion, defendant submitted the affirmation of an attorney employed by the law office that defendant hired to schedule and conduct the EUOs. This affirmation, however, failed to establish a prima facie showing since it did not describe the law office's standard practices and procedures used to ensure that the verification requests were properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co. 286 AD2d 679 [2001]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U]). Consequently, the Civil Court properly denied defendant's cross motion for summary judgment. Accordingly, the order is affirmed insofar as appealed from.

St. Dominick Med. Servs., P.C. v Progressive Ins. Co., 2011 NY Slip Op 50609(U) (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

Plaintiff commenced this action to recover assigned first-party no-fault benefits by personally serving defendant via mail pursuant to CPLR 312-a. Thereafter, defendant moved to dismiss the complaint on the ground that process had not been properly served. In its moving papers, defendant asserted that since it had not signed the acknowledgment of receipt of the summons and complaint and returned it to plaintiff within 30 days of receiving it, plaintiff was required to serve defendant in another manner and had failed to do so. In opposition to the motion, plaintiff's attorney stated, among other things, that defendant should be compelled to sign the acknowledgment of receipt of the summons and complaint. The Civil Court denied defendant's motion.

Since defendant did not sign and return the acknowledgment of receipt of the summons and complaint, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]). Accordingly, the order is reversed and defendant's motion to dismiss the complaint is granted.

Central Radiology Servs., P.C. v MVAIC, 2011 NY Slip Op 50617(U) (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

Since plaintiff and its assignors were aware of the identity of the owner of the vehicle in which the assignors had been passengers at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the judgment is reversed, the order entered August 20, 2008 denying MVAIC's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment is vacated, MVAIC's motion is granted and plaintiff's cross motion is denied.

All County, LLC v Unitrin Advantage Ins. Co., 2011 NY Slip Op 50621(U) (App. Term, 9th & 10th Jud. DIsts. 2011).

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of an employee of Alternative Consulting and Examinations (ACE), which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been sent to plaintiff's assignor in accordance with ACE's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the doctor who was to perform the IMEs, which established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124).

We note that, contrary to the finding of the District Court, while Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) states that a no-fault insurer must base its request for an examination under oath upon "the application of objective standards so that there is specific objective justification supporting the use of such examination," it does not impose such a standard on a request for an IME.

As the appearance of the assignor at an IME is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant's motion for summary judgment dismissing the complaint is granted.

Crescent Radiology, PLLC v American Tr. Ins. Co., 2011 NY Slip Op 50622(U) (App. Term, 9th & 10th Jud. DIsts. 2011).

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted affidavits of its no-fault examiner and its mailroom supervisor. The affidavits sufficiently established that the EUO notices had been sent to plaintiff's assignor in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the investigator who was to perform the EUOs, which established that the assignor had failed to appear therefor (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124).

The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant's request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]).

Alev Med. Supply, Inc. v Progressive N. Ins. Co., 2011 NY Slip Op 50624(U) (App. Term, 9th & 10th Jud. DIsts. 2011).

In this action by a provider to recover assigned first-party no-fault benefits, the parties participated in a mandatory arbitration proceeding (see Rules of the Chief Judge [22 NYCRR] part 28). Following the arbitration hearing, the arbitrator found in favor of plaintiff. Thereafter, defendant timely served and filed a demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12). Plaintiff moved to strike the demand, asserting that, while defense counsel had appeared at the arbitration hearing, that appearance was tantamount to a default since defendant had attempted to establish its defense of lack of medical necessity through non-evidentiary submissions of counsel, and had not produced its doctor to testify. As a result, plaintiff contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). The District Court denied plaintiff's motion to strike defendant's demand for a trial de novo, and this appeal by plaintiff ensued.

The order is affirmed (see B.Y., M.D., P.C. v Geico Indem. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50036[U] [App Term, 9th & 10th Jud Dists 2011]).

Five Boro Psychological Servs., P.C. v MVAIC, 2011 NY Slip Op 50627(U) (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

Contrary to plaintiff's contention, defendant's submission of, among other things, the police report, which identified the insurer of the vehicle in which plaintiff's assignor was a passenger at the time of the accident, was sufficient to raise a triable issue as to whether plaintiff had exhausted its remedies against the vehicle's owner before seeking relief from MVAIC (see Matter of Eagle Ins. Co. v Rodriguez, 15 AD3d 399 [2005]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Matter of Eagle Ins. Co. v Olephant, 81 AD2d 886 [1981]). Accordingly, plaintiff's motion for summary judgment is denied.

Nature Acupuncture, P.C. v MVAIC, 2011 NY Slip Op 50633(U) (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

In this action by providers to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground, among others, that there was no coverage because no proof had been provided establishing that all insurance remedies had been exhausted against the owner of the vehicle in which plaintiffs' assignor had been a passenger. Plaintiffs cross-moved for summary judgment. The Civil Court denied MVAIC's motion and granted plaintiffs' cross motion. Since plaintiffs and their assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident, plaintiffs, as assignees, were required to exhaust their remedies against the vehicle's owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiffs did not demonstrate that they had exhausted their remedies against the owner of the vehicle, the order is reversed, MVAIC's motion for summary judgment dismissing the complaint is granted and plaintiffs' cross motion for summary judgment is denied.

Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 2011 NY Slip Op 21130 (App. Term, 2nd, 11th & 13th Jud. DIsts. 2011).

Plaintiff commenced this action to recover assigned first-party no-fault benefits on October 5, 2005 and subsequently moved for summary judgment. Defendant
opposed plaintiff's motion. By order dated November 2, 2007, the Civil Court granted plaintiff's motion, finding, among other things, that defendant had not established that its denials had been timely mailed. In a judgment entered on November 21, 2008, plaintiff was awarded the principal amount sought plus statutory interest and attorney's fees. In the judgment, interest was calculated on each of the 12 claims at issue to commence 30 days after defendant's receipt of each claim, as indicated on defendant's claim denial forms.

Shortly after entry of the judgment, defendant moved, pursuant to CPLR 5015, to vacate the judgment, arguing that plaintiff was not entitled to the full amount of the judgment because the interest had been improperly calculated. Defendant contended that plaintiff was entitled to interest only from October 5, 2005, the date that plaintiff had commenced the action, and not, as plaintiff had computed, from 30 days after defendant's receipt of the claim forms at issue. By order entered March 26, 2009, the Civil Court granted defendant's motion to vacate the judgment and directed that the amount of interest awarded be recalculated to run from October 5, 2005 until November 2, 2007. This appeal by plaintiff ensued. 

Insurance Law § 5106 (a) provides that first-party benefits are overdue "if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained . . . [and that] overdue payments shall bear interest at the rate of two percent per month." If arbitration is not requested or an action is not commenced "within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken" (Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]). Furthermore, if a dispute has been submitted to arbitration or to the courts, "interest shall accumulate, unless the applicant unreasonably delays the . . . court proceeding" (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d]).

Where, as here, a defendant has not established the proper mailing of the denial of claim form, the claim is considered not to have been denied and payment of benefits will therefore be considered to be "overdue" within the meaning of Insurance Law § 5106 (a). Accordingly, interest on the claim will not be tolled (cf. LMK Psychological Servs., P.C. v State Farm. Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]), and commences to accrue "30 days after the claim was presented to the defendant for payment until the date the claim was or is paid" (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). As plaintiff calculated interest on the claims in question as commencing 30 days after defendant's receipt of said claims, the Civil Court erred, in its order entered March 26, 2009, in directing that interest be recalculated from the date of the commencement of the action. Similarly, it was error to direct that interest accrue until the date of the order granting plaintiff's motion for summary judgment, since interest accrues "until the date the claim was or is paid" (id.). It is noted that plaintiff is not entitled to interest pursuant to the Civil Practice Law and Rules, since Insurance Law § 5106 (a) and the regulations promulgated thereunder supersede the provisions for interest contained in the CPLR (Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959 [1977]; see also Smith v Nationwide Mut. Ins. Co., 211 AD2d 177 [1995]).

Accordingly, the order is reversed, defendant's motion to vacate the judgment is denied, and the judgment entered on November 21, 2008 is reinstated.

Weston, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.

Golia, J., concurs in part and dissents in part and votes to reverse the order and remit defendant's motion to vacate the judgment to the Civil Court for a determination de novo following a hearing to determine the actual date the denial of claim forms were received by plaintiff.

Although I disagree with the majority in finding that the accumulation of interest will not be tolled until after a denial of claim (NF-10) was received by plaintiff, I am constrained to accept that analysis in view of a recent opinion letter issued by the Superintendent of the Insurance Department.

Opinion of the General Counsel NY Ins. Department No. 10-09-05, dated September 14, 2010, states:
"2 . . . Interest is not tolled during the period that a claim becomes overdue until the insurer issues to the insured the denial of claim. Interest is only suspended or tolled from the date the claimant fails to commence an action within 30 days of the receipt of the denial of claim form until an action is actually commenced."

Nevertheless, I find that the majority's holding here that, "Where, as here, a defendant has not established the proper mailing of the denial of claim form[s], the claim is considered not to have been denied . . ." is inappropriate.

A careful reading of the November 2, 2007 order of the Civil Court does not indicate, as the majority states, that defendant failed to establish "the proper mailing of the denial of claim form[s]" (emphasis added). The Civil Court simply found that "the affidavits proffered by defendant's agents . . . did not establish . . . that defendant's denials were timely mailed" (emphasis added). There is a distinction.

A defendant's failure to prove timely mailing may well result in summary judgment for the plaintiff. However, as was made abundantly clear by the Court of Appeals in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the untimely mailing of a denial of claim form will not stop the tolling of interest.

Thus, by the confusion raised in this distinction, I further recommend that the Insurance Department revisit and clarify this issue. The punitive interest assessed against a carrier for failing to timely pay a valid claim was meant to serve as a strong incentive to pay claims in a timely manner and to punish those that do not. It would be inappropriate to allow a plaintiff to intentionally choose not to prosecute its claim in hopes that the carrier would not be able to establish mailing or that the court simply finds that it has not. Under those circumstances, the plaintiff would be receiving a windfall in excess of 24% interest per year for up to six years.

If the stated purpose of the No-Fault Law is to resolve claims expeditiously, then it must apply equally to the claimant as well as the carrier.