HON. F. DANA WINSLOW,

Transcription

1 5". SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice NEW YORK HOSPITAL CENTER OF a/a/o KHUSHI ROBINSON, QUEENS WESTCHESTER MEDICAL CENTER a/a/o ROBERT DE LOS SANTOS, TRIAL/IAS PART 4 NASSAU COUNTY Plaintiffs, INDEX NO. : /10 -against - MOTION DATE: 3/16/11 QBE INSURANCE CORPORATION, Defendant. MOTION SEQ. NO: 002, 003 QUEENS The following papers read on the motion (numbered 1-3): Notice of Motion (Seq. 002)..._... Notice of Cross Motion (Seq. 003)... Reply and Opposition to Cross Motion... The motion of plaintiffs NEW YORK HOSPITAL MEDICAL CENTER OF ala/o KHUSHI ROBINSON and WESTCHESTER MEDICAL CENTER ROBERT DE LOS SANTOS and the cross motion of defendant QBE INSURANCE CORPORATION for summary judgment pursuant to 3212 are determined as CPLR follows. This is an action pursuant to separate no-fault bils. Insurance Law 5106 FIRST CAUSE OF ACTION to compel payment of two alalo Plaintiff NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS (" HOSPITAL") is the assignee for health services rendered to KHUSHI ROBINSON during the period from September 25, 2010 through September arising out of an automobile accident that occurred on September 25, On October , NY HOSPITAL sent to the defendant a Hospital Facility Form (Form N-F 5) and a UBconstituting its claim for payment of a hospital bil in the amount of$5, NY

2 ), " HOSPITAL claims that it also attached complete medical records to the bil. Defendant received the claim on October It is undisputed that NY HOSPITAL mailed and that defendant received the hospital facilty form and uniform biling form within the statutory time ftame. NY HOSPITAL moves for summary judgment on grounds that defendant failed to pay ot issue a valid denial of claim. Defendant QBE INSURANCE CORPORA TION ("QBE") cross moves for summary judgment on grounds that the action is premature. Defendant argues it was not obligated to pay as a result of NY HOSPITAL' s failure to respond to defendant' s verification requests. In support of its motion, NY HOSPITAL proffers an affidavit of Pat Thompson employed by a third part biler and account representative for NY HOSPITAL, sworn to on February (the "Thompson Affidavit"), attesting to personal knowledge of mailing of the biling forms to defendant and the receipt by defendant on specific dates. NY HOSPITAL also submits copies of the bils and signed return receipt requested receipts demonstrating that defendant received same. In opposition and in support of its cross motion, defendant contends that the Thompson Affidavit is not sufficient to establish NY HOSPITAL' prima facie entitlement to judgment as a matter of law. Defendant argues that Thompson, employed by a third part biler, does not have personal knowledge of the mailing practices and procedures, and that the Thompson Affidavit does not establish how NY HOSPITAL' claim forms were mailed and by whom. The Court finds that NY HOSPITAL has sufficiently established its prima fac ie entitement to judgment as a matter of law by submitting, "the requisite biling forms, an affidavit from its third-part biler, the certified mail receipt, and the signed return-receipt card referencing that the plaintiff mailed the necessary billng documents to the defendant, that the defendant received them, and that the payment of no- fault benefits was overdue. NYU Hospital For Joint Diseases v. Country Wide Insurance Company, 2011 WL ; New York Hospital Medical Center of Queens v. Country Wide Insurance Company, 82 AD3d 723; New York & Presbyterian Hospital v. Allstate Insurance Company, 30 AD3d 492. Defendant also argues that NY HOSPITAL' s action is premature as it has failed to respond to outstanding verification requests. In support, defendant proffers (1) the affidavit of Eric Lyons (the "Lyons Affidavit" No-Fault Litigation Supervisor" of Country-Wide Management Services as TPA for QBE", sworn to on March which provides the general office mailng practices of defendant, states that a verification request and second verification request were mailed on November and December 18, 2010, respectively and lists the requested documents that remain outstanding; and (2) a ' First Request for Verification, dated November , seeking the applicant' s completed NF 2,4, delay for rev. NF2 completed by claimant signed, rev.

3 1/04 NF4 completed by hospital signed (no stamps), rev. 1/04 assignment of' and with respect to lost earnings "benefits signed by patient and by hospital (no stamps). Defendant also proffers a "Final Request For Verification, dated December seeking the same documents. Defendant argues it was not obligated to payor issue a denial of claim form due to failure of plaintiff NY HOSPITAL to respond to defendant' verification requests. An insurer is required to either payor deny a claim within thirt (30) calendar days after proof ofthe claim is received. 11 NYCRR 65-8 (a)(l). An insurer s obligation to payor deny a claim within 30 days, generally does not begin to run unti it has received the information requested in accordance with applicable regulations. 11 NYCRR 65-5(c); Hospital for Joint Diseases v. Travelers Property Casualty Insurance Company, 9 NY3d 312; St. Vincent' s Hospital of Richmond v. American Transit Insurance Co., 299 AD2d 338. Although the Court finds that the Lyons Affidavit is conclusory and fails to establish that verification forms were mailed and received on the dates claimed, NY HOSPITAL does not dispute receipt of said forms. However, NY HOSPITAL argues in reply, that Forms NF-2 and NF-4 requested by defendant were not required and that defendant' s request for a ' Rev. 1/04 Assignment of' is unclear. The Court agrees. An insurer must accept a completed hospital facilty form (Form N- F5 or an NF- 5 and uniform biling form) from a provider of health services in lieu of an application for motor vehicle no-fault benefits and verification of hospital treatment (Forms NF- 2 and NF- 4). 11 NYCRR 65-5(g); Nyack Hospital v. General Motors Acceptance Corporation, 8 NY3d 294. Defendant's request for Rev. 1/04 Assignment of' is vague and unclear. As such, the Court finds that defendant has failed to raise an issue of fact in opposition to NY HOSPITAL' s motion for summary judgment and has failed to establish its prima facie burden on its cross motion for summary judgment. SECOND CAUSE OF ACTION Plaintiff WESTCHESTER MEDICAL CENTER (" WESTCHESTER" ) is the assignee for health services rendered to ROBERT DE LOS SANTOS during the period from September through September arising out of an automobile accident that occurred on September On September , WESTCHESTER sent to the defendant a Hospital Facilty Form (Form N-F 5) and a UB-, constituting its claim for payment of a hospital bil in the amount of $ Defendant received the claim on October 8, It is undisputed that WESTCHESTER mailed and that defendant received the hospital facilty form and uniform billng form within the time frame. WESTCHESTER moves for statutory summary judgment on grounds that defendant failed to payor issue a valid denial of claim. Defendant QBE INSURANCE

4 , " CORPORA TION (" QBE" ) cross moves for summary judgment on grounds that the action is premature. Defendant argues it was not obligated to payor issue a denial of claim form as a result of WESTCHESTER' s failure to respond to defendant's verification requests. In support of its motion, WESTCHESTER proffers an affidavit of Peter Kattis employed by a third part biler and account representative for WESTCHESTER, sworn to on February 15, (the "Kattis Affidavit"), attesting to personal knowledge of mailng of the biling forms to defendant and the receipt by defendant on specific dates. WESTCHESTER also submits copies of the bils and return receipt requested receipts demonstrating that defendant received same. As discussed above, the Court finds that the Kattis Affidavit and accompanying evidence sufficiently establishes WESTCHESTER' prima facie entitlement to judgment as a matter of law. See NYU Hospital For Joint Diseases v. Country Wide Insurance Company, supra; New York Hospital Medical Center of Queens v. Country Wide Insurance Company, supra; St. Vincent' s Hospital of Richmond v. American Transit Insurance Co. supra. Defendant claims that it issued a verification request on October 18, 2010 and a second verification request on November 18, 2010 seeking various documents including medical records completed NF2 5" and "delay for police report and revised 01/04 NFcomplete from claimant, revised 01/04 NF -5 and revised 01/04 Assignment of Benefit both signed. " In support, defendant proffers the Lyons Affidavit, which provides the general office mailing practices of defendant, and states that a verification request and second verification request were mailed on October and November 18 respectively, and lists the requested documents that remain outstanding In opposition WESTCHESTR claims that it has no record of receiving defendant' s verification requests and that the Lyons Affidavit is insufficient proof of mailing. In support WESTCHESTER proffers a further Affidavit of Peter Kattis, sworn to on March 2, stating that WESTCHESTER did not receive a request for further verification and that 2011 any event, medical records were mailed to defendant on October 19, in WESTCHESTER also proffers the affidavit of Sharon Shafi, secretary to the third biler, attesting to part mailng of the medical records on that date together with a signed certified mail receipt. The Court finds that the Lyons Affidavit and supporting documents fail to raise an issue of fact in opposition to WESTCHESTER' s motion for summary judgment, and in support of its cross motion, defendant failed to make a prima facie showing of entitlement to judgment as a matter of law. The Lyons Affidavit fails to demonstrate that Mr. Lyons had "personal knowledge that the verification requests were actually mailed on the dates

5 --" they were issued, and (his) conclusory allegations regarding the defendant' s offices practices and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper part and properly mailed. The defendant' s submissions were insufficient to create a presumption that the verification requests were received by the proper party (internal citations omitted). Westchester Medical Center v. Countryide Insurance Company, 45 AD3d ; Lenox Hil Hospital v. Country Wide Insurance Company, 2009 WL (Winslow, J). With respect to interest as it relates to both causes of action, defendant avers that a toll of interest applies until a lawsuit is commenced for unpaid fees. Pursuant to Insurance Law 5106(a), interest accrues on overdue no-fault insurance claims at a rate of2% per month. The regulations of the Superintendent of Insurance toll the accumulation of interest if the claimant "does not... institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations" (LMK Psychological Services, P.C. v. State Farm Mut. Auto. Ins. Co., 12 NY3d ; 11 NYCRR 65-9 (cd. Defendant has not demonstrated that it either denied or paid benefits. Accordingly the toll was not triggered and plaintiffs are entitled to 2% per month without tolls. Plaintiffs are also entitled to attorneys' fees in accordance with 11 NYCRR65-6(e). See LMK Psychological Services, P.C. v. State Farm Mut. Auto. Ins. Co. Id. Based on the foregoing, it is ORDERED, that the motion of plaintiff NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS ala/o KHUSHI ROBINSON for summary judgment pursuant to CPLR ~3212 is granted; and it is further ORDERED, that the motion plaintiff WESTCHESTER MEDICAL CENTER ROBERT DE LOS SANTOS for summary judgment pursuant to CPLR ~3212 is granted; and it is further a/a/o ORDERED, that the cross motion of defendant QBE INSURANCE CORPORATION for summary judgment pursuant to CPLR ~3212 is denied. Plaintiffs shall serve a copy of this Order upon the defendant after entry of l'is Order in the records of the Nassau County Clerk. Dated: ;;:tt e(;o /f. / 5 ENTFRED ill If: NASSAU COUNTY COUNTY CLERK' S OFFICE