Plaintiffs motion for summary judgment in this no-fault benefits case required the court to clarify what facts a first-party no-fault plaintiff must set forth in order to establish that its claim is overdue.

Plaintiff argued that overdue simply means not paid, and so, plaintiff argued, the affidavit in support of the motion must only state that the bills have not been paid.

Allstate urged that a bill is overdue only if it has not been paid or properly denied, and so the affidavit in support of plaintiffs motion must state that not only was payment not made, but also that no proper denial was issued.

Court Lays Out Conditions

The court stated that a healthcare provider in a no-fault case for first-party benefits establishes its prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form demonstrating that the prescribed statutory claim form, setting forth the fact and amount of the loss sustained, was submitted to the defendant, and that payment of no-fault benefits is overdue. Specifically, subsection 65-3.8(a)(1) of the regulations provides that no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim. 11 NYCRR 65-3.8(a) (1). Subsection 65-3.8(c) then states: Within 30 calendar days after proof of claim is received the insurer shall either pay or deny the claim in whole or in part.

The provider must make out its case in its own moving papers by setting forth the facts entitling the movant to summary judgment. Only if the plaintiff makes out its prima facie case does the burden shift to the defendant to raise a triable issue of fact.

Affidavit Shows Insurer Did Not Pay

In support of this motion, plaintiff submitted two affidavits. In the first, Fenelly Olivares states that he is the person responsible for submitting plaintiffs no-fault claims and that he personally mailed the subject claims to defendant on April 3, May 15, and May 23 of 2002. Thus, his affidavit established that the claims were submitted to defendant.

The second affidavit is from Rachael Newton, the person responsible for handling and tracking whatever response is forthcoming from the insurers on the claims. Ms. Newton stated that defendant did not pay plaintiffs claims that are the subject of this lawsuit within thirty (30) days. Accordingly, plaintiffs claims are now overdue and owing.

Court Cites Flaws in Plaintiffs Assertions

The court pointed out that, Although Ms. Newton would know, her affidavit is absolutely silent as to whether plaintiff received any denials, and if so, on which of the claims. These are material omissions because if defendant timely issued a valid denial of plaintiffs claims, plaintiff would not be entitled to summary judgment simply because the claims remained unpaid. A claim that has been timely (and validly) denied is not due. Of course, if it is not due, it cannot be overdue. If, on the other hand, plaintiff had shown in its moving affidavit that there were no denials, or that the denials were late or otherwise invalid and thus a nullity, plaintiffs claims would be overdue, and plaintiff would be prima facie entitled to judgment. None of those facts, however, may be gleaned from Ms. Newtons affidavit.

At oral argument, plaintiffs counsel urged that plaintiff need not mention anything about denials at all. Rather, counsel argued, all that is necessary is for plaintiff to state that the claims have not been paid and thus are overdue. In support of her argument, counsel relied upon the language of subsection 65-3.8 (a)(1), quoted above, which defines an overdue claim as one that has not been paid within 30 days of submission. This court, however, believes that 11 NYCRR 65-3.8(a)(1) cannot be read in a vacuum. Subsection 65-3.8(c) makes clear that the 30-day rule entails a failure to pay or deny the claim within 30 days. To wit, within 30 calendar 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). The problem with plaintiffs counsels approach is that it invites providers to bring disingenuous summary judgment motions alleging that their claims are overdue even when they are well aware that they received valid, timely denials.

Plaintiffs counsel correctly noted that the Appellate Term routinely uses the phrase that payment of no-fault benefits is overdue when enumerating the elements of plaintiffs prima facie case. In the courts view, however, that phrase is merely a shorthand for that the claim has not been paid or denied within 30 days. Since a claim is overdue only if it has been neither paid nor properly denied, and plaintiff states only that its claims were not paid, plaintiff has not made out its prima facie case.

Plaintiff Not Entitled to Summary Judgment

By its holding, this court is not increasing the burden of a plaintiff healthcare provider moving for summary judgment in a no-fault case. Indeed, once the plaintiff sets forth that its claim has not been paid or timely denied, the defendant must still come forward with competent proof to rebut that assertion in order to defeat the motion. All this court is requiring is that the plaintiff make clear in its moving papers that it is entitled to judgment on its claims.

The court recognizes that a statement that the claim has not been paid or timely denied is boilerplate, and the absence of such a statement may seem like a mere technicality. But it is not. Every statement in an affidavit is sworn to under the penalties of perjury. If the affiant knows that there was a timely denial of the unpaid claim, then it would be perjurious to state that the claim has not beentimely denied. Indeed, under that circumstance, it would be improper for the provider to seek summary judgment based on untimeliness of the denial, although it would be free to move based upon some other ground.

A party moving for summary judgment in any case must show that there is no defense to the cause of action or that the cause of action or defense has no merit. Here, Ms. Newtons affidavit neither states nor shows that there is no defense or that the defenses have no merit. Indeed, since proper denials would constitute a defense to the action, plaintiffs failure to address whether the claims were denied makes the moving affidavit not only insufficient but disingenuous as well.

Ms. Newtons affidavit is deficient in several other respects as well. First, according to plaintiffs counsels affirmation, the instant motion relates only to the claims for three of the five assignors in this case, yet the affidavit fails to set forth this material fact. Second, the affidavit fails to specifically reference which of the seven claims from the three assignors it addresses, or the amounts thereof. Third, the affidavit does not make clear whether the ground for the motion is the same, or different, for each of the seven claims from the three assignors. When a suit combines multiple claims and/or assignors, it is incumbent upon the moving party to identify in the affidavit each claim and/or assignor to which the motion is directed, and the reason the movant is entitled to judgment upon each one. Rather than do so here, plaintiff submitted an affidavit that could have been attached to any motion for summary judgment between these parties.

Based on all of the foregoing, the court finds that plaintiff has not made out its prima facie case for entitlement to summary judgment as a matter of law.

Comment: Obviously, plaintiffs attorney was trying to be cute (or as the court put it, disingenuous) by conveniently neglecting to mention in its motion papers that Allstate had sent timely denials to the bills. In effect, plaintiff was arguing that the mere fact of lack of payment automatically entitled plaintiff to summary judgment, and left it, I suppose, to Allstate to demonstrate why plaintiff was not entitled to it. This is a useful and handy decision to keep around, and gives defense counsel another tool to carefully examine summary judgment motions.

New York Craniofacial Care, P.C. a/a/o Maria Vega, Christopher A. Mendez, Daniel Rodriguez, Marsha Rasin, and Julio Suazo v. Allstate Insurance Company 2006 NY Slip Op 50500(U)(Civil Court, Kings County) (BLUTH, j)