I. Papers The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment in its claims: Papers Numbered Defendant’s Notice of Motion as well as Certification and Verification dated November 20, 2020 (“Motion”) and electronically filed with the court on the same date. 1 Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated March 31, 2021 (“Cross-Motion”) and electronically filed with the court on the same date. 2 Defendant’s Affirmation in Opposition to Cross-Motion dated April 26, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on the same date. 3 II. Background In a summons and complaint filed July 17, 2020, Plaintiff sued Defendant insurance company to recover $2,141.70 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Browne, plus attorneys’ fees and statutory interest (see Motion, Aff. of Tapada, Ex. A). Defendant moved to dismiss the complaint on the grounds that Plaintiff submitted some claims untimely and other claims exceeded the fee amount prescribed by applicable fee schedules. Plaintiff cross-moved for summary judgment on its claims. An oral argument by both parties was conducted by this Court on November 15, 2021. III. Discussion The injured party or assignee of No Fault benefits must submit proof of the claim to the insurer within 45 days of the date health services were rendered (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR §65-1.1[d]). Compliance with the 45-day proof of claim requirement is a condition precedent to a No Fault insurer’s liability (New York & Presbyt. Hosp. v. Country-Wide Ins. Co., 17 NY3d 586, 590 [2011]; 11 NYCRR §65-1.1[d]). In addition, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law §5102[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law §5108 (Insurance Law §5102[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law §5108[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law §5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v. Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]). Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law §5106[a]; 11 NYCRR §65-3.8[c]; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d at 281-82). To support its motion, Defendant presented an affidavit sworn November 19, 2020, in which Victor (see Motion, Aff. of Tapada, Ex. C, Defendant’s Claims Associate, attested in detail to Defendant’s standard office practices and procedures for processing claims it received. Victor attested that Defendant submitted six (6) bills forming the claim for $2,141.70 in this case, which Defendant received respectively on September 16, 2019. A bill for $206.69 for services provided on July 10, 2019, a bill for $154.38 for services provided from July 9 to 13, 2019, a bill for $800.00 for services provided on July 9, 2019, a bill for $49.82 for services provided on July 11, 2019, and a bill for $235.31 for services provided on July 10, 2019 (“Early July 2019 Bills”) were denied on September 24, 2019 on the grounds that Plaintiff failed to timely submit proof of claim and that the bills exceeded the applicable fee schedule. Given the range of dates of service from July 9 to July 13, 2019, the deadline for filing proof of claim ranged from August 23 to 27, 2019. Regarding a bill for $898.94 for services provided July 30, 2019 (“Late July 2019 Bill”), Defendant paid $203.44 and denied the remainder of the claim on the ground that it exceeded the applicable fee schedule. The deadline for filing proof of claim for this bill was September 13, 2019. Copies of Plaintiff’s claim forms, Defendant’s denials of claim and explanations of review for each claim were attached to Victor’s affidavit. Defendant’s evidence demonstrated that Plaintiff untimely submitted all the claims for the Early July 2019 Bills. Thus, Defendant established that the Early July 2019 Bills were timely denied on the ground that proof of claim was untimely submitted (Lenox Hill Radiology & Mia, P.C. v. American Mfrs. Mut. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51750[U] *1 [App Term 2d Dept 2013]; Lecia Supply, Inc. v. American Tr. Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50711[U] *1 [App Term 2d Dept 2013]; Midtown Med. Assoc., P.C. v. Clarendon Natl. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51351[U] *1-2 [App Term 2d Dept 2012]; Prestige Med. & Surgical Supply, Inc. v. Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] *1 [App Term 2d Dept 2010]). In opposition, Plaintiff argued that Defendant’s evidence was inadmissible, so that it was insufficient to establish timely denial of Plaintiff’s claim. While Plaintiff argued that Victor’s statements that Plaintiff untimely submitted its claims were hearsay because Defendant failed to present the forms upon which he based his statements (see Deutsche Bank Natl. Trust Co. v. Elshiekh, 179 AD3d 1017, 1021 [2d Dept 2020]), as noted above, the denial of claim forms and explanations of review which Victor addressed in his affidavit were attached to his affidavit. Contrary to Plaintiff’s contention, Defendant’s denial of claim forms expressly advised that the untimely submission of claim would be excused if Plaintiff provided reasonable justification for the claim’s late submission, so complied with applicable regulations (11 NYCRR §§65-1.1[d]; 65-3.3[e]; Lenox Hill Radiology & Mia, P.C. v. American Mfrs. Mut. Ins. Co., 2013 NY Slip Op 51750[U] *1; Lecia Supply, Inc. v. American Tr. Ins. Co., 2013 NY Slip Op 50711[U] *1; Midtown Med. Assoc., P.C. v. Clarendon Natl. Ins. Co., 2012 NY Slip Op 51351[U] *2; Prestige Med. & Surgical Supply, Inc. v. Chubb Indem. Ins. Co., 2010 NY Slip Op 50449[U] *1). Plaintiff also presented an affidavit dated March 29, 2021, in which Higgins, Plaintiff’s office manager, attested that the claims were mailed to Defendant on September 10, 2019. Higgins acknowledged that the bills were not sent “within 45 days as the result of an internal office error” and explained that assignor’s “insurance information was misplaced and the office had difficulty getting in touch with [assignor] to verify the insurance information” (Cross-Motion, Aff. of Enright, Ex. 2 at 2). The court rejects this conclusory explanation as it did not detail Plaintiff’s attempts to contact assignor to justify the delay of at least 14 days between the deadline to submit the claims and the date Plaintiff sent them (see Synergy First Med., PLLC v. MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] *1 [App Term 2d Dept 2014]). In any event, Plaintiff was required to provide “written proof providing clear and reasonable justification for the failure to comply with such time limitation” (11 NYCRR 65-1.1[d]; Synergy First Med., PLLC v. MVAIC, 2014 NY Slip Op 50964[U] *1; AAA Chiropractic, P.C. v. MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] *1 [App Term 2d Dept 2010]). Finally, Regarding the Late July 2019 Bill, for which Defendant paid a reduced amount and denied the remainder on the ground it exceeded the applicable fee schedule, Defendant raised no arguments how the Late July 2019 Bill exceeded the fee schedule in support of its motion. Defendant only identified in its Explanation of Review regarding this bill the fee code that should have been applied warranting reduction of the amount billed. Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v. Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v. Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v. Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). Here, Victor did not purport to be an expert in fee schedules in his affidavit. Since Defendant did not otherwise support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount of the Late July 2019 Bill (Gentle Acupuncture, P.C. v. Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupuncture, P.C. v. Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v. American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion regarding the Late July 2019 Bill (see Pullman v. Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v. Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v. ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). As discussed above, Higgins admitted that the bills were not timely submitted and provided a conclusory explanation for the untimely submission of the bills, which the court rejected. Plaintiff also relied on Defendant’s denials of claim (see Lopes v. Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), but they demonstrated that the bills were untimely submitted and denied on that basis. Plaintiff presented no arguments that the Late July 2019 Bill complied with the applicable fee schedule and presented no expert evidence to support such a contention. Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion (U.S. Bank N.A. v. Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v. MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]). IV. Order Accordingly, it is ORDERED that Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is granted as to the Early July 2019 Bills (i.e., the bill for $206.69 for services provided on July 10, 2019, the bill for $154.38 for services provided from July 9 to 13, 2019, the bill for $800.00 for services provided on July 9, 2019, the bill for $49.82 for services provided on July 11, 2019, and the bill for $235.31 for services provided on July 10, 2019), but otherwise denied; and it is further ORDERED Plaintiff’s cross-motion for summary judgment in its claims is denied. This constitutes the Decision and Order of the court. Dated: December 2, 2021
