The Rogak Report: 01 May 2006 ** No Fault - Timeliness of Payment **
- NO-FAULT PLAINTIFF MUST DISCLOSE, WHEN MOVING FOR SUMMARY JUDGMENT,
WHETHER INSURER HAS ISSUED DENIALS
New York Craniofacial Care PC a/a/o Maria Vega, Christopher A.
Mendez, Daniel Rodriguez, Marsha Rasin, and Julio Suazo v. Allstate
Ins. Co., NYLJ 4/27/06 (Civil Court, Kings County) (BLUTH, j)
In this no-fault benefits suits, the Court was called upon to clarify
what facts a first-party No-Fault plaintiff must set forth in order
to establish that its claim is "overdue."
Plaintiff medical provider argued that "overdue" means "not paid,"
and so the affidavit in support of the motion must only state that
the bills have not been paid. Allstate's position was that a bill
is "overdue" only if it has not been paid or properly denied, and
the affidavit in support of plaintiff's motion must so state.
Plaintiff argued that its claims were submitted to Allstate, were not
paid, and were overdue. Allstate countered that plaintiff did not
make out its prima facie case, and that, in any event, defendant
timely denied the claims.
In support of its summary judgment motion, plaintiff submitted two
affidavits. In the first, Fenelly Olivares stated that he is the
person responsible for submitting plaintiff's 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 was from Rachael Newton, the person responsible
for handling and tracking whatever response is forthcoming from the
insurers on the claims. Ms. Newton stated that "[d]efendant did not
pay plaintiff's claims that are the subject of this lawsuit within
thirty (30) days. Accordingly, plaintiff's claims are now overdue and
"Although Ms. Newton would know," stated the Court, "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 plaintiff's 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, plaintiff's claims would be
overdue, and plaintiff would be prima facie entitled to judgment.
None of those facts, however, may be gleaned from Ms. Newton's
"At oral argument, plaintiff's 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)... which defines
an overdue claim as one that has not been paid within 30 days of
submission. See 11 NYCRR §65-3.8(a)(1). 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
plaintiff's counsel's 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,
"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."
"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 fact that the plaintiff's claims have not been paid does not, in
and of itself, entitle the plaintiff to summary judgment as a matter
"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
been . . . timely 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."
"Ms. Newton's 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, plaintiff's failure
to address whether the claims were denied makes the moving affidavit
not only insufficient but disingenuous as well."
"Ms. Newton's affidavit is deficient in several other respects as
well.... 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. Therefore, the Court need not reach the
sufficiency of defendant's opposition. Accordingly, plaintiff's
motion is denied."