Papers Numbered Notice of Motion, Exhibits Annexed 1 Affirmation in Opposition and Cross motion, Exhibits Annexed 2 Affirmation in Opposition, Exhibits Annexed 3 DECISION AND ORDER Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows: PROCEDURAL HISTORY Plaintiff, Integrative Medical Wellness, PC (hereinafter, “Plaintiff1), as assignee of Daysi Moscoso (hereinafter, “assignor”), commenced this action against the Defendant, Hereford Insurance Company (hereinafter, “Defendant”) to recover assigned first-party no fault benefits for medical treatment provided to assignor on March 10, 2020 resulting from a motor vehicle accident that occurred on November 22, 2019. On or about November 22, 2019, assignor, Daysi Moscoso, was allegedly involved in a motor vehicle accident that allegedly caused her to sustain injuries. As a result of these alleged injuries, assignor sought medical treatment from Plaintiff. The Defendant received two bills from Plaintiff totaling $2,052.80 on March 26, 2020 for services rendered on March 10, 2020. One bill was in the amount of $410.57 and the other $1,642.23. On April 21, 2020 and May 29, 2020, Defendant sent verification requests to Plaintiff for both bills requesting MRI film/CD of the cervical spine, lumbar spine, thoracic spine, pelvis, and all documentation including radiographical images showing any fractures or dislocations of the pelvic ring. On July 7, 2020, August 6, 2020, and August 20, 2020, Plaintiff responded to said verification for both bills. In the July 7, 2020 response, Plaintiff states “Pursuant to Radiology Ground Rule 8, a copy of the MRI Film/CD/or Electronic Media will be provided upon the receipt of $5.00, made payable to Lenox Hill Radiology, P.C. This payment must be accompanied by the Patient Name, Date of Service, CPT code performed, body part description, claim number and the file number (preceded by the letters BSBG as indicated on the letter of representation that accompanied the submission of the bill). Failure to provide this information may result in an inability to identify the proper patient, date of service, claim number, and body part tested.” Notably, the August 6, 2020 and August 20, 2020 responses make the check payable to “Integrative Medical Wellness P.C.”. On July 21, 2020, Defendant responded with a Missing/Incomplete Verification letter notifying Plaintiff that the claim is delayed pending receipt of the requested MRI Film. Defendants follow up requests do not address the request for pre compliance monetary compensation. Neither side disputes if the remaining requested documents were received by Defendant. Defendant now moves the Court for Summary Judgement pursuant to CPLR §3212 based upon Plaintiffs failure to respond to multiple verification requests. Plaintiff opposes the motion on the ground that it responded to the verification requests, and cross moves for Summary Judgment based upon Defendant insurers failure to timely pay or deny the claim. DISCUSSION Defendant’s motion for summary judgment is granted. A motion for summary judgment under CPLR §3212 should be granted if “upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” CPLR §3212 (b). Matter of Eighth Dist. Asbestos Litig., 33 N.Y.3d 488, 496 (2019) quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); O’Brien v. Port Auth. Of N.Y. & N.J., 29 N.Y.3d 27, 37 (2017). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Chiara v. Town of New Castle, 126 A.D.3d 111, 125 (2nd Dep’t 2015), citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 (1966). In reviewing a summary judgment motion, the court must consider the facts in the light most favorable to the opposing party. Lau v. Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 (2017) citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96 (2005). A party in opposition to a motion for summary judgment must present evidence sufficient to raise a triable issue of fact, although mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient. Lau v. Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 (2017) citing Zuckerman v. New York, 49 NY2d 557, 562 (1980). Once the movant has made this showing, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Matter of Eighth Dist. Asbestos Litig., 33 N.Y.3d 488, 496 (2019) quoting Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 (2014) quoting Vega v. Restani Constr. Corp., 18 N.Y.3d 499,503 (2012). In the instant action, the issue for the Court to decide is whether there is any issue of fact as to the outstanding verification and whether a request for $5.00 for the outstanding MRI films ceases the toll on the statutory 30-day requirement for the defendant. Defendant’s Request for Verification Tolled the 30 Day Time Limit for No-Fault Benefits 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 the relevant information requested pursuant to §65-3.5. 11 NYCRR §65-3.8(a)(1). Within 30 days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part. 11 NYCRR §65-3.8(c): Sound Shore Med. Ctr. V. New York Cent. Mut. Fire Ins. Co., 106 A.D.3d 157, 164 (2nd Dep’t 2013). This period may be extended by a timely demand by the insurance company for further verification of a claim. Infinity Health Prods., Ltd. V. Eveready Ins. Co., 67 A.D.3d 862 (2nd Dep’t 2009); Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., N.Y.3d 312, 317 (2007); Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553,555 (2nd Dep’t 1999). Within 10 business days after receiving a completed application for no fault benefits, the insurer shall request verification of information from the claimant. 11 NYCRR §65-3.5(a). After receiving one or more of the completed verification forms, any additional verification required by the insurer to establish proof of the claim shall be requested within 15 business days of the receipt of the prescribed verification forms. 11 NYCRR §65-3.5(b). The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested. 11 NYCRR §65-3.5(c). If the demanded verification is not received within 30 days, the insurance company must issue a follow-up letter within 10 days of the insured’s failure to respond. 11 NYCRR §65-3.6(b). A claim shall not be denied until all demanded verification is provided. 11 NYCRR §65-3.8(b)(3). Verification requests that are sent after the 10 or 15 day requirement but within the 30 day requirement are still valid and the insurer is still entitled to the verification. However, the 30 day time limit to pay or deny the claim is reduced accordingly. 11 NYCRR §65-3.8(1); Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 318 (2007). In support if its motion, Defendant submitted the affidavit of Tony Singh (attached to Defendant’s motion as part of “Exhibit C”), who is employed by Hereford Insurance Company as a No-Fault Supervisor and has personal knowledge of this claim. Pursuant to said affidavit, Mr. Singh detailed the practices and procedures of the processing, handling, and mailing procedures of Hereford Insurance Company. He discussed the steps taken in receiving bills and correspondence from medical providers seeking payment from Defendant and processing the claim. Through Mr. Singh’s affidavit and the supporting documents included in in Defendant’s motion as Exhibit D and E, it is clear that the Defendant properly and timely mailed its notice of verification requests and follow ups. Accordingly, the time in which the Defendant would otherwise be required to deny of pay said claim was tolled. Plaintiff’s Pre-Payment Condition Did Not Cease the Tolling of Time From Defendant’s Verification Request Plaintiff argues that Defendant’s 30 day time limit was not tolled because it had complied with the verification requests and simply was requesting the $5 fee in accordance with Radiology Rule 8 in order to provide said records. Rule 8 states in pertinent part: “Films or other recorded images shall be preserved for at least six years…… They shall be made available to the attending physician, insurance carrier, or self-insured employer…… When a carrier or self-insured requests x-rays, MRI’s or other recorded images and satisfactory reproductions including electronic media are furnished in lieu of original films, a fee of $5.00 may be charged for the first sheet of duplicating film or for reproduction on a an electronic media regardless of the number of imagers contained on the media, and $3.00 for each additional sheet of film or electronic media……such copies should accompany the bill submitted for the particular imaging procedure.” “The no fault regulations do not expressly require defendant to reimburse plaintiff in advance of receiving the MRI films. The no-fault regulations are silent as to when the provider must receive payment of these reproduction costs. Thus, the insurer’s duty to pay the reproduction costs appears independent from the insurer’s right to demand verification.” Lenox Hill Radiology & MIA, P.C. v. Hereford Ins. Co., 72 Misc.3d 702, 709 (NY Civ. Ct. 2021). Prepayment for compliance with a verification request is not proper and does not function as a method of ceasing the tolling of time that a verification request permits. Professional Health Imaging, P.C. v. State Farm Mut. Auto. Ins. Co., 51 Misc.3d 143 (A) (2nd Dep’t 2016) (holding that requiring pre-payment of $4500 for plaintiffs attendance at an Examination Under Oath instead of seeking reimbursement was improper and failed to stop the tolling of time). There is no argument from Plaintiff that the documents deemed outstanding are not in their control. Furthermore, Plaintiff does not give a reasonable justification for noncompliance. Plaintiff argues only that Defendant failed to address the request for $5.00 as they state is required by the Radiology rules. The rules do not state that an insurer is required to pay the fee prior to receiving any requested documents. Instead, they only set out the schedule for which a medical provider may charge. Plaintiff did not object to the verification request for the MRI film. Accordingly, the toll continues and Plaintiffs action is premature. Based on the foregoing, Defendant’s motion for Summary Judgment is granted in its entirety. Dated: February 28, 2022
