Supreme Court, Appellate Term, Second Department, July 10, 2008

APPEARANCES OF COUNSEL

Wollerstein & Futoran, New York City, and Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Law Office of Ilona Finkelshteyn, P.C., Brooklyn (Ilona Finkelshteyn and Emilia I. Rutigliano of counsel), for respondent.

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed plaintiff's motion and cross-moved for summary judgment, arguing, inter alia, that the action was premature due to plaintiff's failure to provide requested verification. The court held that defendant failed to establish that its time to pay or deny plaintiff's claims was tolled since defendant's follow-up verification request was sent to plaintiff prior to the expiration of the 30-day period within which plaintiff was supposed to provide the requested verification (Insurance Department Regulations [11 NYCRR] former § 65.15 [e] [2], now Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). As a result, the court granted plaintiff's motion for summary judgment{**21 Misc 3d at 3} and denied defendant's cross motion for summary judgment. This appeal ensued.

While defendant argues that plaintiff did not establish a prima facie case because plaintiff did not prove its cost of the supplies furnished to plaintiff's assignor, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment [*2]of no-fault benefits was overdue (see Insurance Law § 5106 [a]; see also Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). A medical equipment provider is not required to prove its costs to establish its prima facie case for the recovery of no-fault benefits. Whether a provider's benefits claim exceeded the amount permitted by the fee schedule is a mere defense to an action on a claim, which defense is precluded by an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

Inasmuch as defendant raises no other issue with respect to plaintiff's prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto.

In opposition to plaintiff's motion for summary judgment and in support of defendant's cross motion, the supervisor of defendant's no-fault department stated that because plaintiff failed to provide the requested verification, defendant did not pay or deny the subject claims submitted by plaintiff. We agree with the court below that defendant's failure to adhere to the regulations governing initial and follow-up verification requests rendered ineffective its attempt to toll the 30-day claim determination period. Defendant admits that it mailed a follow-up verification demand 27 days after it mailed its initial demand, and we find the second request premature and without effect (see Insurance Department Regulations [11 NYCRR] former § 65.15 [e] [2], now Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). Contrary to defendant's contention, the case of New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]) does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification. As a result, defendant is precluded from raising most defenses, including its proffered defense of excessive fees (see Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 14{**21 Misc 3d at 4} Misc 3d 135[A], 2007 NY Slip Op 50163[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

While defendant argues that plaintiff was only entitled to recover the interest that accrued since the commencement of this action, such argument lacks merit (Insurance Department Regulations [11 NYCRR] § 65-3.9 [a], [c]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290, 1291 [2007]; see also Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [App Term, 2d & 11th Jud Dists 2007]).

Golia, J. (dissenting and voting to reverse the order, deny plaintiff's motion for summary judgment and grant defendant's cross motion for summary judgment dismissing the complaint). In the first instance, I do not choose to abrogate my responsibility to "pass upon" the most fundamental and preeminent issue to be determined in any litigation, that being whether or not the plaintiff has established a prima facie case. I find that plaintiff did not do so.

I point to the fact that the claim forms submitted are internally inconsistent. That is, plaintiff's first claim form states that the subject injury occurred on November 15, 2000 and the services were provided five days earlier on November 10, 2000. The second claim form maintains the "apparent" misstatement that the injury occurred on November 15, 2000, with the service being provided on January 15, 2001. In addition, with regard to the mailing, plaintiff's affidavit states that the dates of service were November 10, 2000 and (a full year later) [*3]November 15, 2001.

I note that I do not ordinarily believe that a judgment should turn on what appear to be typographical errors. However, the above circumstances to me present sufficient facts, which in addition to others, warrant denial of plaintiff's motion for summary judgment.

Notwithstanding, I find that the follow-up verification and second request for verification did result in a tolling of the 30-day period. The opposite finding by the majority was not because the second request was sent too late (ordinarily the reason for denying the defendant's ability to defend) but because it was sent three days too early. The majority simply states that "[c]ontrary to defendant's contention, the case of New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]) does not{**21 Misc 3d at 5} permit defendant to disregard the regulation governing the timing of a follow-up request for verification." The majority makes this finding even though the cited Appellate Division case deals with a verification request that was dated October 5, 1999 and a follow-up request that was sent and dated November 1, 1999. Certainly, the first day of November is less than 30 days from the fifth day of October.

Plaintiff argues, in substance, that because the Appellate Division did not specifically state that the letter that was dated 27 days later was actually mailed on the date that was noted, the case cannot be read to say that the follow-up was actually mailed 27 days later.

A review of the file that was submitted to the Appellate Division in New York & Presbyt. Hosp. v American Tr. Ins. Co. indicates that there is contained in that file, among other references, the reply affirmation of the plaintiff. It states, "The defendant's letters of October 5, 1999 and November 1, 1999 were not prescribed verification forms." There is no indication from this or any other document in that file that the letter dated November 1, 1999 was mailed on any date other than November 1, 1999. Nor, according to my review, was this issue raised.

I do not support the theory that the Appellate Division found that the November 1, 1999 letter was, in fact, dated November 1, 1999 but not mailed before November 5, 1999, nor was it mailed after November 14, 1999.

I, however, do believe that the Appellate Division understood exactly what was presented to it when it found that the follow-up request for verification that was sent within 30 days of the first request, specifically 27 days, was, in fact, timely and in all respects proper.

Pesce, P.J., and Steinhardt, J., concur. Golia, J., dissents in a separate memorandum.