American Kinetics Lab, Inc., as Assignee of Ruchelle Bartley, Appellant, v. Travelers Insurance Company, Respondent. (2022)

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and plaintiff cross-moved for summary judgment. By order dated August 25, 2020, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

Plaintiff correctly argues that defendant's motion for summary judgment should have been denied, as defendant failed to establish, prima facie, that it properly requested any additional verification from plaintiff. The only request in the purported verification request letters, which defendant sent to plaintiff, is for an explanation as to how the medical supplies furnished by plaintiff affected the treatment plan. That information was specifically being sought from the prescribing doctor, not from plaintiff, as follows:

"By copy of this letter, we request the following information from the prescribing doctor, Albert Cianmino MD of AC Medical PC:

- Please advise as to how the use of the medical supplies prescribed for the patient above effected [sic] their treatment plan."

Therefore, as plaintiff argues, these were delay letters, not verification requests (see 11 NYCRR 65-3.6 [b]; see JOA Chiropractic, P.C. v Hereford Ins. Co., 75 Misc 3d 140[A], 2022 NY Slip Op 50598[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). While defendant correctly argues in its brief that it was entitled to seek verification directly from the prescribing doctor (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), defendant's claim that it actually "sought information from Dr. Albert Cianmino" is not supported by the record. Indeed, despite the statement in the first letter that defendant was, by copy of the letter, requesting information directly from the prescribing doctor, the doctor was not carbon copied on the letter and defendant did not allege, much less prove, that the letter was, in fact, mailed to the prescribing doctor.¹ This is not a situation where plaintiff was even obligated to respond to the letter, if only to state that it does not possess the requested information or documents or to seek clarification (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], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). On its face, the letter does not require a response from plaintiff.

Consequently, defendant did not demonstrate that this action is premature based on outstanding verification requests, and so its motion for summary judgment dismissing the complaint on that ground should have been denied.

Plaintiff's cross motion for summary judgment was properly denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 9, 2022

FOOTNOTES

1.   Defendant relies on a "cover letter to the verification request" which defendant claims in its brief "lists the address of Dr. Cianmino as the primary recipient of the letter." While such a letter would not constitute proof that the letter was mailed to Dr. Cianmino, it is noted, in any event, that there is no such cover letter in the record on appeal.