CAREPLUS MEDICAL SUPPLY INC v. STATE WIDE INSURANCE COMPANY (2005)

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered on September 22, 2004. The order denied plaintiff's motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

 In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a];  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  A.B. Med. Servs. PLLC v. Lumbermens Mut. Cas. Co., 4 Misc.3d 86, 781 N.Y.S.2d 818 [App. Term, 2d & 11th Jud. Dists. 2004];  Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 2003 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.];  Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc.3d 128(A), 2003 N.Y. Slip Op. 51700[U], 2003 WL 23310887 [App. Term, 9th & 10th Jud. Dists.] ).   The record discloses that the defendant submitted a properly completed denial of claim form dated September 25, 2003 covering all the claims involved in the lawsuit.   Contrary to the determination of the court below, said September 25, 2003 denial of claim form, which was attached to plaintiff's moving papers, and is identical to the denial of claim form dated September 25, 2003, included by defendant as part of its papers in opposition to plaintiff's motion, adequately established that plaintiff sent, and that defendant received, the claims (see Capio Med., P.C. v. Progressive Cas. Ins. Co., 7 Misc.3d 129(A), 2005 N.Y. Slip Op. 50526[U], 2005 WL 856843 [App. Term, 2d & 11th Jud. Dists.];  A.B. Med. Servs. v. New York Cent. Mut. Fire Ins. Co., 3 Misc.3d 136(A), 2004 N.Y. Slip Op. 50507[U], 2004 WL 1302031 [App. Term, 2d & 11th Jud. Dists.];   cf. SZ Med. P.C. v. State-Wide Ins. Co., 6 Misc.3d 132(A), 2005 N.Y. Slip Op. 50103[U], 2005 WL 264526 [App. Term, 2d & 11th Jud. Dists.] ).

Defendant's reliance on SZ Med. P.C. v. State-Wide Ins. Co., 6 Misc.3d 132(A), 2005 N.Y. Slip Op. 50103[U], supra is misplaced. In SZ Med. P.C., plaintiffs' billing manager stated that she submitted the 15 annexed claim forms without specifying when they were sent, and relied on defendant's letter which acknowledged receipt of claims but did not specify which of the claims were received.   On those facts, this court held “[i]n the absence of any evidence as to when plaintiffs submitted their claim forms to defendant, and in the absence of any specification in defendant's letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon were overdue” (id.).   In the instant case, unlike in SZ Med. P.C., defendant submitted the exact same denial of claim form dated September 25, 2003 relied upon by plaintiff, without stating any objection thereto, or denying receipt of said bills, thereby effectively conceding receipt of the same.

 Defendant's September 25, 2003 denial of claim form indicates that defendant's denial of plaintiff's claims was not timely made within the 30-day statutory period within which it was required to pay or deny the claims (11 NYCRR 65-3.8[c] ).  We note that the record also contains denial of claim forms dated January 27, 2003 and January 28, 2003.   However, they are fatally defective and of no import since these forms omitted numerous items of requested information, and were thus incomplete (Nyack Hosp. v. Metropolitan Prop. & Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 [2005];  Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 11 A.D.3d 664, 784 N.Y.S.2d 136 [2004] ).   Furthermore, defendant's documentary submissions are insufficient to establish proper mailing either of said denial of claim forms or the independent medical examination notices upon which the denials were based (see Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374, 726 N.Y.S.2d 443 [2001];  Contemp. Med. Diag. & Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc.3d 137(A), 2005 N.Y. Slip Op. 50254[U], 2005 WL 494360 [App. Term, 2d & 11th Jud. Dists.] ).   Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 282, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997] ), including its defense of excessive or unnecessary treatment (see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997];  Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 699 N.Y.S.2d 77 [1999] ).   Defendant has failed to submit proof in admissible form in support of its defense of fraud and/or misrepresentation (see A.B. Med. Servs. PLLC v. State-Wide Ins. Co., 7 Misc.3d 136(A), 2005 N.Y. Slip Op. 50785[U], 2005 WL 1253304 [App. Term, 2d & 11th Jud. Dists.] ).   In any event, the unsworn investigative reports indicate that defendant's claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, forms of “provider fraud” which are defenses subject to the 30-day preclusion remedy (Fair Price Med. Supply Co. v. Travelers Indem. Co., 9 Misc.3d 76, 803 N.Y.S.2d 337 [App. Term, 2d & 11th Jud. Dists. 2005];  see Central Gen. Hosp., 90 N.Y.2d at 199, 659 N.Y.S.2d 246, 681 N.E.2d 413;  Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d at 285, 660 N.Y.S.2d 536, 683 N.E.2d 1;  Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc.3d 92, 781 N.Y.S.2d 819 [App. Term, 2d & 11th Jud. Dists. 2004];  cf. State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 794 N.Y.S.2d 700, 827 N.E.2d 758 [2005] ).

Accordingly, summary judgment is granted in favor of plaintiff and the matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder.