114 A.D.3d 33
N.Y. App. Div.2013Background
- Plaintiff is a medical service provider, assignee of Alem Cardenas, seeking first-party no-fault benefits.
- Plaintiff submitted eight NF-3 verification forms, an NF-10 denial, and mailing ledgers showing bills sent to insurer for services June–October 2004.
- Defendant insurer allegedly did not timely pay or deny the claims within 30 days and denies any timely denial; one denial form dated November 22, 2004 related to a $139 claim.
- Matatov, president of SUM Billing, testified to mailing procedures and personal mailing of NF-3 forms to the insurer; mailing ledgers corroborate mailing.
- Trial court denied summary judgment; Appellate Term affirmed, relying on Art of Healing to require admissibility of billing records under the business records rule.
- Court overrules Art of Healing, clarifying that prima facie case is proven by proof of billing and overdue payment; except for the $139 claim, summary judgment granted; remand to compute remaining amounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prima facie no-fault entitlement requires merits proof | Etienne contends only proof of billing and overdue payment is needed. | Country-Wide contends merits proof is required (Art of Healing). | Prima facie proof is billing and overdue; no merits proof required at this stage. |
| Effect of insurer's failure timely to deny on the plaintiff's burden | Failure to deny timely allows preclusion of defenses and automatic recovery. | Preclusion should not erase plaintiff's substantive burden to prove merits. | Preclusion may limit defenses but does not remove the plaintiff's ultimate burden to prove the claim. |
| Admissibility burden for claim forms when no timely denial | Not required to prove business-record admissibility to establish billing. | Plaintiff must show the NF-3 forms are admissible as business records. | Plaintiff's prima facie proof of billing need not establish the billings' merits; when no timely denial, insurer cannot challenge admissibility to prove billing. |
| Scope of the damage and the $139 claim | All claims should be awarded based on prima facie showing. | The $139 claim was timely denied and thus not affected by preclusion. | As to the $139 claim, denial was timely; that claim not awarded; other claims prevail. |
Key Cases Cited
- Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (2008) (preclusion remedy for no-fault overpayments)
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 (2007) (timely denial and lack of defenses, tight no-fault timelines)
- Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997) (policy objective of prompt no-fault payments)
- Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081 (2011) (prima facie proof through mailing and overdue payments)
- New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 (2007) (proof of claim and timeliness in no-fault regime)
- New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 (2006) (no-fault proof requires mailing/receipt of forms)
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 (2008) (anomaly over admissibility requirement for prima facie case)
- Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 (2010) (basis for admissibility of claim forms in prima facie case)
- Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 (2011) (prima facie proof of mailing and overdue payments)
- NYU Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 (2011) (no-fault proof duties and timing)