Boilerplate affidavit mandates triable issue of fact on verification issue

Longevity Med. Supply, Inc. v Allstate Ins. Co., 2015 NY Slip Op 50757(U)(App. Term 2d Dept. 2015)

“[a]n affidavit from plaintiff which asserts that material responsive to the verification requests had been sent to defendant.”

New Way Med. Supply Corp. v National Liab. & Fire Ins. Co., 2015 NY Slip Op 50783(U)(App. Term 2d Dept. 2015)

“However, upon the record before us, we find that there is a triable issue of fact as to whether plaintiff responded to those verification requests and, therefore, neither party is entitled to summary judgment”

New York Diagnostic Med. Care, P.C. v Country-Wide Ins. Co., 2015 NY Slip Op 50814(U)(App. Term 2d Dept. 2015)

“A review of the record reveals that triable issues of fact exist, including whether plaintiff adequately responded to defendant’s verification requests”

There will be many more of these cases.  But it begs the question.  Carrier asks for soap notes, or sign in sheets.  Plaintiff provides an affidavit that says we mailed the verification, yet does not provide the date the specific verification was mailed and provide the verificaiton in its opposition papers.

Most judges find this conclusory-self serving boilerplate affidavit to be conclusory and insufficient.  The law clerks’ in Brooklyn seem to think otherwise.  I am at a loss on this one.  Also, if the law clerks on the 15th floor see a flood of appeals where the same affidavit and same lack of response from many insurance carriers exists, can we assume that the verification was never supplied and that this is a ploy to stave off summary judgment, which should be granted?

These decisions (and many more on this exact issue) disappoint me.


Non receipt and verification

Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50401(U)(App. Term 2d Dept. 2015)

(a) As to non-receipt

“[D]efendant’s mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing” (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff’s first cause of action.”

The law requires a detailed discussion as to how the conclusion of non-receipt was reached.

(b) As non-receipt of verification

“Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from one of plaintiff’s employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant”

This is conclusory affidavit where the biller says they sent the verification but never actually presents proof that the verification was complied with.  How can this document raise an issue of fact?

They did not act in good faith

Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 2015 NY Slip Op 00876 (2d Dept. 2015)

“In this case, the nonparty, Carmen Carvajal, allegedly was injured in a motor vehicle accident on February 22, 2011, and thereafter sought treatment from the Westchester Medical Group, incorrectly named herein as Westchester Medical Group, M.D. (hereinafter Westchester). As assignee of Carvajal, Westchester sought from her insurance carrier, the petitioner Allstate Insurance Company (hereinafter Allstate), no-fault benefits in the sum of $352.81 for medical services rendered to Carvajal. However, Allstate maintained that it had no duty to pay this sum since its request to Westchester for “additional verification” allegedly remained outstanding (see 11 NYCRR 65-3.5[f]). In an award dated April 25, 2012, the arbitrator concluded that Westchester did in fact comply with the requests for additional verification, and that Allstate “did not appear to be acting in good faith.” That award was confirmed in an award issued by a master arbitrator on July 23, 2012. The Supreme Court denied Allstate’s petition to vacate the master arbitrator’s award and confirmed the award. We affirm.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017;see Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 755-756; Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367). Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232; Matter of Petrofsky [Allstate Ins. Co.], 54 [*2]NY2d 207, 211; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560, 561). “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535). Accordingly, the Supreme Court properly denied the petition and confirmed the award.

I read the underlying decision.  The NF-2 was sought and the provider stated it was not in possession.  Respondent did not find this to be acceptable.  The claim was granted, master affirmed, Supreme Court confirmed and the Appellate Division affirmed.

Verification defense upheld

Schutzstaffel Med. Care, P.C. v Eveready Ins. Co., 2014 NY Slip Op 51305(U)(App. Term 2d Dept. 2014)

“Defendant demonstrated that it had not received the requested verification. Plaintiff did not oppose defendant’s cross motion. Contrary to the Civil Court’s statement, there is nothing in the record which would require defendant to prove that the copies of the verification letters annexed to defendant’s cross motion had not been tampered with or altered (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 [1994]; People v Dicks, 100 AD3d 528 [2012]; Rotanelli v Longo, 210 AD2d 392 [1994]). As the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]”

Schozer is a case that this particular Plaintiff loves to harp upon; yet, always gets it wrong.  I never knew certain Civil Court Kings County judges required an affirmative showing of lack of tampering in order to preserve particular defenses.

FYI: every time I see “SS medical” I get to sick to my stomach.  Like many of my generation, both sets of my grandparents escaped Nazi Germany.  That said, many of my relatives did not escape.  I just think it is completely offensive that someone would name their facility SS Medical, regardless of whether or not there was venal intent.  If a portion of my post got you thinking, then that it is a good thing.


New York Central Mutual has got tied up in Sound Shore (again?)

Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 05779 (2d Dept. 2014)

(1) “In March 2011, Ana Rodriguez, who was insured under a policy of automobile insurance issued by the defendant, New York Central Mutual Fire Insurance Company (hereinafter New York Central), allegedly was injured in an automobile accident. In November 2011, she received treatment at a hospital facility of the plaintiff, Mount Sinai Hospital (hereinafter Mount Sinai). In early December 2011, a few days after Mount Sinai rendered this treatment, it sought payment for it. Mount Sinai’s third-party biller, The Outsource Group (hereinafter Outsource), sent a Form UB-04 and a letter requesting payment to New York Central. Twenty days after New York Central received the request, it requested verification of Mount Sinai’s claim. Approximately one week after New York Central sent the verification request, it received from Outsource more than 100 pages of documents, including records of Rodriguez’s treatment at Mount Sinai and various forms Rodriguez had completed there. New York Central did not request further verification. On January 27, 2012, less than 30 days after it received these records, New York Central issued a denial of the claim on a Form NF-10. The Form NF-10 was, in all substantial respects, complete.”

(2) “Two months later, on March 26, 2012, Mount Sinai, which was now represented by a different third-party biller, issued another request for payment of its bill for the treatment it had rendered to Rodriguez. This time, Mount Sinai’s third-party biller issued the request on a Form NF-5. New York Central ignored this request for payment, and, in May 2012, Mount Sinai, as assignee of Rodriguez, commenced this action seeking payment. Mount Sinai eventually moved for summary judgment on the complaint, and New York Central cross-moved for summary judgment dismissing [*2]the complaint. The Supreme Court denied Mount Sinai’s motion and granted New York Central’s cross motion. Mount Sinai appeals. We reverse.”

(3) “Here, in reliance on Sound Shore, Mount Sinai contends that its billing through Outsource in December 2011 on a Form UB-04 did not commence the 30-day period in which New York Central was required to pay, deny, or request verification of Mount Sinai’s claim. Instead, Mount Sinai contends, the 30-day period commenced in March 2012, when Mount Sinai submitted a billing request on a Form NF-5. In effect, Mount Sinai contends, New York Central’s denial of claim in January 2012 did not deny anything; there was no claim submitted in December to deny.”

My opinion is that this is far fetched.  Everyone knows no-fault is a game of form over substance.  Some call it the game of gotcha.  Recall Justice McKeon’s concurrence in Lenox Hill v. Tristate?  I am baffled how  a re-bill triggered a new 30-day pay or deny period, when the App. Div. has previously said this was not the case.  So, through magic of form NF-5, a new 30-day pay or deny period materialized?

In St. Vincent v. Countrywide 7 years ago, this Court stated that a follow-up verification was issued on day 30 (not 31-40) was sufficient to preserve the tolling because, in essence, the carrier should not be penalized for proactive claims handling.  The Court reversed the Appellate Term on the fact, the law and in the interest of justice.  Now 7 years later, this Court through Sound Shore and now Mount Sinai has given the Henig gang a free pass on logic for “strict compliance” with how this Court perceives the regulations should be interpreted.

This case  cries for a trip to Albany.  The only catch, of course, is why was the original bill denied?  Assuming the Court of Appeals said this is  an injustice and allows the original UB-04 “under the peculiar facts of this case” to act as the NF-5, what is the substantive defense to this hospital bill?

Finally, I would be remiss if I did not express the first thing on my mind when I read this case was, but why the heck did NYCM not address the second submission.  That is baffling.


Additional verification letters were mailed and proof of non-receipt was insufficient

E4 Servs., Inc. v National Liab. & Fire Ins. Co., 2014 NY Slip Op 51124(U)(App. Term 1st Dept. 2014)

“In opposition, plaintiff’s “denial of receipt, standing alone,” was insufficient to raise a triable issue (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]; see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355 [1936]; E4 Servs., Inc. v Lincoln Gen. Ins. Co., 43 Misc 3d 136[A], 2014 NY Slip Op 50678[U][App Term, 1st Dept 2014]). Nor did plaintiff provide a sufficiently detailed showing of its own procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims to raise a triable issue of fact”

You are starting to get the sense that proving a lack of receipt is as cumbersome a process as proving a document was mailed.


Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 24145 (App. Term 2d Dept. 2014)

In this case, a pro-forma non-receipt affidavit – similar to the one I suspect in E4 Servs., Inc. v Lincoln Gen. Ins. Co.
43 Misc.3d 136(A)(App. Term 1st Dept. 2014) – was sufficient to raise an issue of fact as to whether the verification was mailed.  The Court opined on the significance of mailing the verification to the “attorney”

(1) “[p]laintiff submitted an affidavit executed by its owner in which he described plaintiff’s practices and procedures that result in all mail being recorded in plaintiff’s computer system on the date of receipt, as well as being physically filed in the appropriate “patient” file. Plaintiff’s owner stated that he had reviewed the computer file and the physical file for the “patient” at issue, and that plaintiff has no record of having received verification requests for the claims at issue.”

(2) “For the purpose of determining whether a no-fault insurer’s time to pay or deny a claim has been tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), a request for written verification that the insurer communicates to the applicant by mail is complete upon its delivery to the United States Postal Service (cf. CPLR 2103 [b] [2]). Thus, contrary to the finding of the Civil Court, the operative question in this case is not whether the requests were received by plaintiff, but whether defendant mailed them.”

(3) “Defendant correctly asserts that plaintiff did not make a prima facie showing that its attorney had not received the carbon copies of the verification requests that allegedly had been sent to counsel’s office. However, contrary to defendant’s argument, receipt of such letters did not give rise to a duty on the part of plaintiff’s counsel to forward these requests to plaintiff since, on their face, they purport to duplicate letters simultaneously sent to plaintiff (but cf. New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

A statement of non-receipt brings forth a triable issue of fact.  As to the “attorney argument”, the Court cites to NY Hosp., which states there should be communication between the provider and the attorney and to Great Wall where the Court went to great pains to state that counsel explicitly stated that (s)he represented EIP for purposes pf an EUO.  I do not necessarily see the distinction here; I also question why the rule in marte-rosario which states that service of a letter on an attorney is sufficient to to impute knowledge to the EIP is not followed here.  This panel makes up rules as it goes along.

Another IME no-show victory shrowded in American Transit citations

Healthy Way Acupuncture, P.C. v Allstate Ins. Co.,  2014 NY Slip Op 50841(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).Accordingly, when [plaintiff’s]; assignor[]; failed to appear for the requested medical exams, [defendant]; had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).”

This is a fitting decision as the author of this appeal was my co-author in American Transit v. Solorzano, James F. Sullivan, Esq.

Finally, I was informed that Plaintiff’s main argument was that the IME letters were sent more than 15-business to 30-calendar days after receipt of no-fault billing, therefore the IME letters were not timely.  If I were writing this decision, I would state clearly that the time frames deal with the 10-day follow-up period and that the a denial is not needed.  While the Court reaches this conclusion, it never spells it out.  I believe some of the appeals from Justice Billings’ decisions will force the Court to explicitly spell out the “time frames” the Court is referencing.

A triable issue of fact

New York Univ. Hospital-Tisch Inst. v Government Employees Ins. Co., 2014 NY Slip Op 03812 (2d Dept. 2014)

“Here, the evidence submitted by the defendant demonstrated that it received the last of the responses to its requests for additional verification on December 21, 2010, at which time the 30-day period within which it was required to pay or deny the claim began to run. The defendant issued a denial of claim dated January 19, 2011, 29 days later. Thus, in opposition to the plaintiffs’ prima facie showing, the defendant raised a triable issue of fact as to whether it denied the plaintiffs’ claim within the requisite 30-day period, as tolled by its requests for additional verification (see generally Hospital for Joint Diseases v Travelers Property Cas. Ins. Co., 9 NY3d at 317; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 163; see also 11 NYCRR 65-3.5[b]). Contrary to the Supreme Court’s determination, the defendant was not required to set forth a medical rationale in its denial of claim form or, in the absence of a written request, to furnish a copy of the peer review report, in admissible form or otherwise

So, can Plaintiff move for summary judgment putting in proof that it sought a peer report, thereby forcing Defendant to include its peer report or IME report (in admissible form) to raise an issue of fact?  This is  another example of this Court wholly moving away from Mary Immaculate, where an insurance carrier had to substantiate its denial, against an overdue bill, to defeat summary judgment.  Now, a medical provider would have to move affirmatively against the basis of the denial to force the insurance carrier to substantiate its denial on summary judgment.

But, with “3212[g]” and Viviane, you can accomplish at “trial” with great ease what you could not accomplish at the summary disposition phase.



Follow the NF-5

Mount Sinai Hosp. v Dust Tr., Inc., 2014 NY Slip Op 03667 (2d Dept. 2014)

“contrary to the defendant’s contention, this action is not premature, and the 30-day period in which the defendant must pay or deny the claim has not been indefinitely tolled. “[A]; request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164). Here, the defendant sent two letters requesting verification, one dated March 15, 2010, and another dated April 15, 2010. The defendant’s verification request dated March 15, 2010, was sent after the defendant received an “interim bill” from the plaintiff, which was sent solely for the purpose of notifying the defendant of the claim, and preceded the defendant’s receipt of the N-F 5 form. Thus, the March 15, 2010, verification request did not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny the claim. Consequently, the only effective request for verification was the one dated April 15, 2010, six days after the defendant’s receipt of the plaintiff’s N-F 5 form (see id.).”

This is the ultimate in form over substance.  Strangely, the carrier that receives the UB-04 prior to NF-5 gets penalized for reacting to the UB-04 while implicitly ignoring the NF-5