SUMMIT PSYCHOLOGICAL v. GENERAL ASSURANCE COMPANY

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Supreme Court, Appellate Term, New York.

SUMMIT PSYCHOLOGICAL, P.C., a/a/o Rosa Pedro, Respondent, v. GENERAL ASSURANCE COMPANY, Appellant.

Decided: June 28, 2005

Present:  RUDOLPH, P.J., McCABE and COVELLO, JJ. Troy & Troy, P.C., Lake Ronkonkoma (Kurt Schaub of counsel), for appellant.

Appeal by defendant from an order of the District Court, Suffolk County (S. Hackeling, J.), dated May 17, 2004, which granted plaintiff's motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, 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 A.D.3d 742, 774 N.Y.S.2d 564 [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.] ).   In opposition to plaintiff's motion, defendant argued that it properly denied plaintiff's claims on the ground of nonattendance by plaintiff's assignor at scheduled independent medical examinations (IMEs).

 Where “an insurer timely asserts in its claim denial form an injured person's failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff's motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted ․ and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc.3d 18, 793 N.Y.S.2d 661 [App. Term, 2d & 11th Jud. Dists. 2004];  see also S & M Supply v. Peerless Ins. Co., 6 Misc.3d 127(A), 2004 N.Y. Slip Op. 51683[U], 2004 WL 2979217 [App. Term, 2d & 11th Jud. Dists.] ).

 In the instant case, defendant's submissions in opposition to plaintiff's motion, including the affidavit of its no-fault examiner, were insufficient to establish that the denial of claim forms were timely mailed within 30 days after receipt of plaintiff's claims (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 Employees 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 asserting its defense of nonattendance at scheduled pre-claim IMEs (see Careplus Med. Supply v. General Assur. Co., 7 Misc.3d 126(A), 2005 N.Y. Slip Op. 50429[U], 2005 WL 742765 [App. Term, 9th & 10th Jud. Dists.] ).

 Even assuming that defendant timely denied the claims, the affidavit of the defendant's claims examiner was inadequate to establish proper mailing of the IME requests since there was no allegation by one with personal knowledge that the IME requests were mailed.   Nor did the affidavit contain a description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v. Metropolitan Prop. and Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 [2005];  Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374, 726 N.Y.S.2d 443, supra;  Careplus Med. Supply v. General Assur. Co., 7 Misc.3d 126(A), 2005 N.Y. Slip Op. 50429 [U],supra;  Contemp. Med. Diag. & Treatment, P.C. v. Government Employees Ins. Co., 6 Misc.3d 137(A), 2005 N.Y. Slip Op. 50254[U], supra ).

We note that the court below determined that defendant's denial of claim forms which were issued subsequent to the receipt of plaintiff's claims, were “based on an earlier, blanket denial of benefits for failure of plaintiff's assignor to submit to independent medical examinations, a denial it made before plaintiff ever submitted the instant claim.”   The court then went on to state that “blanket disclaimers covering subsequent claims are impermissible” citing A & S Med. v. Allstate Ins. Co., 196 Misc.2d 322, 764 N.Y.S.2d 767 [App. Term, 1st Dept. 2003], affd. 15 A.D.3d 170, 789 N.Y.S.2d 27 [2005].

 The court properly determined that defendant's denial of claim forms which preceded its receipt of the instant claims did not constitute valid denials of no-fault benefits.   The insurance regulations provide that an insurer must either pay or deny the claim “within 30 calendar days after proof of claim is received” (11 NYCRR 65-3.8[c] ).  Further, “no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim which shall include verification of all of the relevant information requested” pursuant to the verification rules (11 NYCRR 65-3.8 [a][1] ).   The regulations further provide that “an insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all of the relevant information requested pursuant to section 65-3.5” (11 NYCRR 65-3.8[b][3] ).

 Pursuant to the insurance regulations, an essential predicate for an insurer's denial of a claim is the receipt of a proper proof of claim.   Accordingly, defendant's blanket general denial of claim forms which were issued by the defendant prior to its receipt of the plaintiff's claims for no-fault benefits do not constitute a valid denial of no-fault benefits for said claims (see A & S Med. v. Allstate Ins. Co., 196 Misc.2d 322, 764 N.Y.S.2d 767, affd. 15 A.D.3d 170, 789 N.Y.S.2d 27, supra;  cf. New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583, 744 N.Y.S.2d 201 [2002] ).   These denial of claim forms were, in any event, also fatally defective since they 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, supra;  Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 11 A.D.3d 664, 784 N.Y.S.2d 136 [2004] ).

In the instant case, however, defendant issued denials subsequent to the receipt of plaintiff's claims.   Contrary to the determination of the court below, said denials were not “based” on the earlier disclaimers, but rather, clearly and independently indicated that they were based on the assignor's failure to appear for pre-claim IMEs. Thus, to the extent that the court below granted plaintiff's motion on the ground that the denials were improper, it was error.   Nonetheless, plaintiff's motion was properly granted for the reasons stated above.

 We further note that defendant's challenge to plaintiff's prima facie case on the ground that the assignment was not authenticated is without merit.   The lack of authentication of an assignor's signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v. Nationwide Mut. Ins. Co., 6 Misc.3d 70, 792 N.Y.S.2d 289 [App. Term, 2d & 11th Jud. Dists. 2004] ).   Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant's failure to seek verification of the assignments, or to allege any deficiency in the assignments in a timely denial of claim form, would constitute a waiver of any defenses with respect thereto (see id.;  New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 A.D.3d 640, 779 N.Y.S.2d 548 [2004];  Presbyterian Hosp. in City of N.Y. v. Aetna Cas. & Sur. Co., 233 A.D.2d 433, 650 N.Y.S.2d 602 [1996];  Park Health Ctr. v. Eveready Ins. Co., 2001 N.Y. Slip Op. 40665[U], 2001 WL 1807733 [App. Term, 2d & 11th Jud. Dists.] ).