American Arbitration Association New York No-Fault Arbitration Tribunal

In the Matter of the Arbitration between: New York Surgery Center of Queens AAA Case No. 17-16-1044-7285 (Applicant) Applicant's File No. 99379 - and - Insurer's Claim File No. 63CBLG14004540 NAIC No. 38237 American Country Insurance Company (Respondent)

ARBITRATION AWARD

I, Nancy Kramer Avalone, the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD:

Injured Person(s) hereinafter referred to as: Assignor MHZ

1. Hearing(s) held on 02/23/2018, 04/20/2018 Declared closed by the arbitrator on 04/20/2018

Michael Specter, Esq. from The Odierno Law Firm P.C. participated in person for the Applicant

Joseph J. Licata, III, Esq. from Rossillo & Licata LLP participated in person for the Respondent

2. The amount claimed in the Arbitration Request, $ 10,000.00, was AMENDED and permitted by the arbitrator at the oral hearing.

The amount claimed in the Arbitration Request was amended down to $3,026.24, in conformance with the amount calculated by Respondent.

Stipulations WERE NOT made by the parties regarding the issues to be determined.

3. Summary of Issues in Dispute

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Applicant seeks reimbursement for the facility fee associated with right knee surgery provided to Assignor MHZ on March 31, 2016, following the motor vehicle accident of September 21, 2014. Respondent contends that the Applicant failed to establish its prima facie case as the claim was not received.

4. Findings, Conclusions, and Basis Therefor

This matter was decided based upon the submissions of the parties as contained in the electronic file maintained by the American Arbitration Association, and the oral arguments of the parties' representatives. There were no witnesses. I have reviewed the documents contained in the E-file, heard the arguments of the parties, and make my decision in reliance thereon.

The instant dispute arises out of a motor vehicle accident that occurred on September 21, 2014, involving Assignor MHZ, a 46-year old male, as a pedestrian. On March 31 2016, Dr. Winiarsky performed arthroscopic surgery to the Assignor's right knee. Applicant seeks reimbursement in the amended amount of $3,026.24, for the facility fee associated with the surgery. The amended amount conforms to the Respondent's calculations, as per the opinion of the Certified Professional Coder. Respondent contends that the claim for these services was not received prior to the initiation of this arbitration procedure.

The Applicant submitted the bills, assignment of benefits, contemporaneous documentation and mailing log. The Respondent submitted the affidavit of Respondent's agent, and affidavit of Certified Professional Coder.

Under Sec. 5102 of the New York Insurance Law (McKinney 1985), No-Fault first party benefits are reimbursement for all medically necessary expenses on account of personal injuries arising out of the use or operation of a motor vehicle.

The Applicant health care provider establishes its prima facie entitlement to reimbursement by submitting proof that the prescribed billing forms were mailed and received and that payment of no-fault benefits was overdue. Insurance Law ยง 5106(a); Mary Immaculate Hospital v. Allstate Insurance Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004); Viviane Etienne Med. Care v. Country-Wide Ins. Co., 25 N.Y.3d 498 (2015).

The courts have declared that there are three distinct methods to demonstrate proof of mailing: (1) provide an affidavit from an individual with personal knowledge of the actual mailing (See, Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc. 3d 1139[A], 866 N.Y.S.2d 90, 2008 NY Slip Op 51065[U] [N.Y.Dist.Ct. 2008]); (2) acknowledgment by the adverse party that it received the subject document (See A.B. Med. Servs., PLLC v. New York Cent. Mut. Fire Ins. Co., 3 Misc.3d 136[A], 787 N.Y.S.2d 675, 2004 NY Slip Op 50507[U] [App. Term 2nd & 11th Jud. Dists. 2004]);

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and (3) where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed (See, Lenox Hill Radiology, P.C. v. Tri State Consumer Ins. Co., 31 Misc.3d 13, 919 N.Y.S.2d 755 [App. Term 1st Dept. 2010]).

In support of their position, Respondent relied upon the affidavit of Michelle Molina, employee of the authorized agent of the Respondent, Atlas Financial Holdings, Inc. Ms. Molina has been employed at Atlas since 2013, and averred that the claim at issue was not received by the Respondent or its agent. Ms. Molina discusses the standard business practices and procedures followed by Atlas Financial Holdings, and states that the procedures apply to the former Queens office and former office, located at 11 Hanover Squire, Suite 501, New York, New York 10005. She advises that the address at 11 Hanover Squire, Suite 501, New York, New York 10005, was the proper address from April 1, 2006 through August 31, 2009, and the present/current office, located at 65 , Suite 1805, New York New York 10006.

On the day prior to the arbitration, the Applicant submitted a mailing log showing that Applicant mailed a claim to the Respondent at the address noted as 11 Hanover Square, New York, NY 10005 on April 22, 2016, the address used from 2003 to 2009. There was no accompanying affidavit establishing the standard office and procedures for mail.

I note that Applicant's failure to submit an affidavit by a person who possessed personal knowledge of Applicant's practices and procedures so as to lay or attempt to lay a foundation for the submission of any additional proofs of mailings as a business record requires me to find the Applicant has failed to establish that the bills were submitted in a timely manner. See Bath Med Supply, Inc. v. Deerbrook Ins. Co., 14 Misc. 3d 135[A] (App. Term, 2d & 11th Jud. Dists. 2007); Dan Med. P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc. 3d 44 (App. Term, 2d & 11th Jud. Dists. 2006). Under the circumstances herein, it is clear that the Applicant has failed to establish proper mailing for this bill and the claim must be denied in its entirety. Additionally, the address utilized by the Applicant had not been the address for the Respondent since 2009, five years earlier. Even considering Applicant's late submission, the claim is denied.

After reviewing the totality of credible and admissible evidence, I find in favor the Respondent.

The claim is denied. This award is in full disposition of all claims for No-Fault benefits presently before this Arbitrator.

5. Optional imposition of administrative costs on Applicant. Applicable for arbitration requests filed on and after March 1, 2002.

I do NOT impose the administrative costs of arbitration to the applicant, in the amount established for the current calendar year by the Designated Organization.

Page 3/5 6. I find as follows with regard to the policy issues before me: The policy was not in force on the date of the accident The applicant was excluded under policy conditions or exclusions The applicant violated policy conditions, resulting in exclusion from coverage The applicant was not an "eligible injured person" The conditions for MVAIC eligibility were not met The injured person was not a "qualified person" (under the MVAIC) The applicant's injuries didn't arise out of the "use or operation" of a motor vehicle The respondent is not subject to the jurisdiction of the New York No-Fault arbitration forum

Accordingly, the claim is DENIED in its entirety

This award is in full settlement of all no-fault benefit claims submitted to this arbitrator.

State of New York SS : County of Nassau

I, Nancy Kramer Avalone, do hereby affirm upon my oath as arbitrator that I am the individual described in and who executed this instrument, which is my award.

04/21/2018 Nancy Kramer Avalone (Dated)

IMPORTANT NOTICE

This award is payable within 30 calendar days of the date of transmittal of award to parties.

This award is final and binding unless modified or vacated by a master arbitrator. Insurance Department Regulation No. 68 (11 NYCRR 65-4.10) contains time limits and grounds upon which this award may be appealed to a master arbitrator. An appeal to a master arbitrator must be made within 21 days after the mailing of this award. All insurers have copies of the regulation. Applicants may obtain a copy from the Insurance Department.

Page 4/5 ELECTRONIC SIGNATURE

Document Name: Final Award Form Unique Modria Document ID: 830424e7b65bde577c0c52db2cd1a871

Electronically Signed

Your name: Nancy Kramer Avalone Signed on: 04/21/2018

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