[*1]

Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.

Frank S. Patruno Law Offices P.C., Montgomery (Frank S. Patruno of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J), entered August 11, 2015, denying the unopposed petition to vacate a master arbitration award, dated March 17, 2015, which affirmed an arbitrator’s award that had granted respondent no-fault insurance benefits, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.

The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]). Concur—Friedman, J.P., Richter, Kapnick and Kahn, JJ.

Decided on February 15, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, February 15, 2017

APPEARANCES OF COUNSEL

Gabriel & Shapiro LLC, Wantagh (Jason Moroff and Steven F. Palumbo of counsel), for appellant.

Gialleonardo, McDonald & Turchetti, New York City (Kevon Lewis of counsel), for respondent.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

It is undisputed that, during claims processing, plaintiff’s attorney sent defendant a letter requesting that “all other communications relating to this claim” be sent to plaintiff’s attorney. Defendant timely mailed verification and follow-up verification requests to plaintiff but did not send these requests to plaintiff’s attorney. On appeal, plaintiff argues that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter. In the alternative, plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel. Plaintiff maintains that since defendant failed to do so, defendant is not entitled to summary judgment.

Plaintiff’s contention that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter lacks merit, as there is no such requirement, where, as here, the party from whom the verification is sought is the plaintiff,{**55 Misc 3d at 93} rather than another person or entity (see GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42, 44 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).

To the extent plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel, we disagree. Insurers are obligated to comply with the no-fault regulations, which require that both the initial and follow-up verification requests be sent to the party from whom the verification is sought (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]) and, thus, defendant cannot be penalized for sending the verification requests to plaintiff notwithstanding the request from plaintiff’s counsel (cf. St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588 [2002]). In addition, we note that if plaintiff was confused as to why the requests were sent to it or whether it needed to respond to the requests, “[a]ny confusion on the part of the plaintiff . . . should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

In light of the foregoing, we find no basis to disturb the order of the District Court.

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

[*1]

Stern & Montana, LLP, New York, NY (Richard Montana of counsel), for appellant.

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to reimburse certain no-fault medical payments with respect to a motor vehicle collision that occurred on September 11, 2011, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 9, 2014, which denied its unopposed motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., upon their failure to appear or answer the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., declaring that (a) a motor vehicle collision that occurred on September 11, 2011, was an excluded act and all claims arising from that accident are excluded under the terms and conditions of an automobile liability insurance policy issued to the defendant Enis Sebastian, and (b) the plaintiff is not obligated to reimburse certain no-fault medical payments, defend and indemnify the defendant Enis Sebastian against any third-party claims, or provide coverage for any uninsured or underinsured motorist claims with respect to the subject motor vehicle collision is granted.

On September 11, 2011, the defendants Sharine Carrier, Roland Sebastian-Hall, and Jennine Eastmond (hereinafter collectively the claimants) allegedly were injured when their vehicle was sideswiped by a U-Haul truck. After the accident the claimants sought medical treatment from, among others, the defendants Active Care Medical Supply Corp., Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc. (hereinafter collectively the corporate medical providers), and the defendant Amy M. Kott, MT. Thereafter, the corporate medical providers and Kott sought reimbursement of no-fault benefits under an automobile liability insurance policy issued to the defendant Enis Sebastian by the plaintiff, Allstate Property & Casualty Insurance Company, the insurer of the claimants’ vehicle. On November 21, 2012, the plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to reimburse the [*2]no-fault medical payments made by the medical providers with respect to the subject motor vehicle collision. The individual defendants were served pursuant to CPLR 308 (4) and the corporate medical providers were served via the secretary of state. On December 20, 2012 the plaintiff served the corporate medical providers with an additional copy of the summons and complaint pursuant to CPLR 3215 (g) (4). After the individual defendants and the corporate medical providers failed to appear or answer, the plaintiff moved by notice of motion dated August 13, 2013, for leave to enter a default judgment against them. The Supreme Court denied the unopposed motion.

On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant’s default (see CPLR 3215 [f]; Roy v 81E98th KH Gym, LLC, 142 AD3d 985 [2016]; Gershman v Ahmad, 131 AD3d 1104, 1105 [2015]; Dupps v Betancourt, 99 AD3d 855, 855 [2012]; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]). Here, the plaintiff provided copies of the affidavits of service, a complaint verified by the plaintiff’s authorized agent, an affidavit of merit, documentary evidence, and proof that the individual defendants and the corporate medical providers had defaulted in answering the complaint. The plaintiff’s proof was sufficient to establish a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). Accordingly, the plaintiff’s unopposed motion for leave to enter a default judgment against the individual defendants and the corporate medical providers should have been granted. Rivera, J.P., Dillon, Chambers and Hinds-Radix, JJ., concur.

Decided on February 8, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 22, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible set forth in the insurance policy in question, it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff opposed the motion, arguing that defendant’s motion was untimely pursuant to CPLR 3212 (a), that defendant had not properly applied the fee schedule, and that defendant had failed to show that a deductible was applicable since the copy of the automobile insurance policy included in the moving papers contains an out-of-state certification. By order entered January 22, 2015, the Civil Court granted defendant’s motion.

It is uncontroverted that defendant served plaintiff with its original motion for summary judgment dismissing the complaint on April 14, 2014, which was within 120 days of the filing of the notice of trial on December 13, 2013. However, the Clerk of the Kings County Civil Court did not accept the filing of the motion because the notice of motion contained an incorrect address for the court. Thereafter, in May 2014, defendant filed a second, otherwise identical, motion for summary judgment dismissing the complaint, which set forth the correct address for the Civil Court. “It does not follow from the fact that this single motion had been served . . . on two separate occasions that its timeliness must be judged by the later . . . rather than the earlier . . . date of service. The mere fact that the defendant, after having served its original notice of motion on the plaintiff’s attorney in a timely fashion, filed new motion papers seeking the same relief, [was] not fatal to [such motion]” (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562 [2006] [internal quotation marks and citations omitted]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant’s second motion for summary judgment dismissing the complaint was not untimely.

With respect to the merits of defendant’s motion, we note that, on appeal, plaintiff does not renew its claim that defendant did not properly apply the fee schedule. Plaintiff claims that the copy of the automobile insurance policy annexed to defendant’s moving papers was [*2]inadmissible because it lacked a proper certificate of conformity. However, the absence of a certificate of conformity is not a fatal defect (see Bank of NY Mellon v Vytalingam, 144 AD3d 1070 [2016]; Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co., 46 Misc 3d 138[A], 2015 NY Slip Op 50078[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the case at bar, plaintiff failed to make any showing of prejudice. Inasmuch as the affidavits and documents defendant submitted sufficiently established that the automobile insurance policy in question had a $200 personal injury protection deductible, we find no basis to disturb the Civil Court’s implicit finding that defendant, pursuant to the terms of the policy, was entitled to deduct $200 from the sum it was required to pay plaintiff for the services plaintiff had rendered to its assignor in July 2007.

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 3, 2015. The order, insofar as appealed from, granted defendant’s motion to dismiss the complaint for plaintiff’s failure to provide discovery, pursuant to an order of the same court (Richard G. Latin, J.) entered July 28, 2014, to the extent of directing plaintiff to serve responses to certain enumerated demands within 60 days.

ORDERED that the order entered February 3, 2015, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, on December 5, 2013, served an answer and demands for discovery including “supplemental combined demands.” Plaintiff did not provide the requested discovery but, instead, moved for summary judgment. Thereafter, defendant cross-moved, among other things, to dismiss the complaint pursuant to CPLR 3126, or, in the alternative, to compel plaintiff to respond to the discovery demands. Plaintiff served papers in opposition to defendant’s cross motion, which included incomplete responses to the discovery demands. By order entered July 28, 2014, the Civil Court (Richard G. Latin, J.) granted defendant’s cross motion to the extent of directing plaintiff to provide responses to the “supplemental combined demands” within 60 days. The order and notice of its entry were served on plaintiff’s counsel on August 5, 2014. Plaintiff did not serve the ordered discovery responses but, instead, served a notice of trial and certificate of readiness, which defendant’s attorneys received approximately one week later, on August 13, 2014.

Defendant then moved, pursuant to CPLR 3126, to dismiss the complaint, or, in the alternative, to vacate the notice of trial and certificate of readiness, or, in the alternative, to direct plaintiff to provide discovery responses, in accordance with the Civil Court’s July 28, 2014 order. Plaintiff opposed the motion and annexed responses which consisted primarily of objections to the “supplemental combined demands.” Plaintiff appeals from so much of an order of the Civil Court (Jodi Orlow, J.) entered February 3, 2015 as granted defendant’s motion to the extent of directing plaintiff to provide, within 60 days, responses to certain enumerated discovery demands and stated that the action would be dismissed based upon an affirmation of noncompliance by defense counsel.

Since the demands for discovery were served on plaintiff’s counsel on December 5, 2013 [*2]and plaintiff did not challenge the propriety of the demands within the time prescribed by CPLR 3122 (a), plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands at issue seek information which is palpably improper or privileged. In light of the foregoing and the Civil Court order entered July 28, 2014, and as plaintiff’s remaining contentions lack merit, we find no basis to disturb the February 3, 2015 order, insofar as appealed from.

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decided on February 8, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered February 19, 2015, to the extent appealed from, granting plaintiff’s motion for summary judgment and declaring that plaintiff is not obligated to provide no-fault benefits to defendants Adelaida Physical Therapy, P.C., Charles Deng Acupuncture, P.C., Delta Diagnostic Radiology, P.C., Island Life Chiropractic Pain Care, PLLC, Maiga Products Corp., and TAM Medical Supply Corp. as a result of a motor vehicle accident, due to claimants’ failure to appear for their scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618).

In view of our disposition, we need not reach defendants’ remaining contentions. Concur—Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.

[*1]

Supreme Court, Nassau County, February 1, 2017

APPEARANCES OF COUNSEL

Joseph Henig, P.C., Bellmore, for plaintiff.

Law Offices of Printz & Goldstein, Woodbury, for defendant.

The motion by the plaintiff, St. Barnabas Hospital, as assignee of Dawn Henry (motion sequence No. 01), seeking an order pursuant to CPLR 3212, granting it summary judgment against the defendant, Government Employees Insurance Company (hereinafter GEICO), and the cross motion by the defendant, GEICO (motion sequence No. 02), seeking an order pursuant to CPLR 3212, granting it summary judgment and dismissing the complaint, are determined as hereinafter provided.

This is an action to recover no-fault benefits on a hospital no-fault billing. The plaintiff, St. Barnabas, is the assignee for health-related services rendered to GEICO’s insured, Dawn Henry, during the period of April 10, 2016 through April 13, 2016, for injuries sustained as a result of a motor vehicle accident that occurred on April 10, 2016. At issue is whether the defendant, GEICO, timely and properly requested additional verification from the plaintiff, St. Barnabas, upon its receipt of proof of the claim which effectively tolls the 30-day time period within which GEICO must pay or deny the claim for such services rendered in the amount of $43,212.59.

On April 21, 2016, the plaintiff, St. Barnabas, billed the defendant, GEICO, utilizing a hospital facility form (form NF-5) and a UB-04, seeking payment of a hospital bill in the sum of $43,212.59 (see exhibit 1 attached to plaintiff’s motion). The billing was sent via certified mail, return receipt requested, and was received by the defendant, GEICO, on April 25, 2016 (see exhibit 2 attached to plaintiff’s motion). On May 16, 2016, GEICO served a request for additional verification. On May 20, 2016, St. Barnabas served a response letter acknowledging receipt of GEICO’s request wherein it objected to the validity of the request. GEICO received St. Barnabas’ response on May 23, 2016. On June 20, 2016, GEICO served a second follow-up request for additional verification. St. Barnabas never responded to GEICO’s second request. The instant action was filed shortly thereafter.

The plaintiff alleges that the defendant, GEICO, failed to either pay the hospital bill or issue a timely denial. In opposition,{**55 Misc 3d at 787} the defendant, GEICO, contends that the plaintiff failed to demonstrate its prima facie entitlement to summary judgment on the grounds that (i) the plaintiff failed to show the claims were not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit; (ii) the plaintiff’s supporting affidavit is deficient in that it cannot be demonstrated that the affiant, employed by a third-party claims administrator, has personal knowledge of the hospital’s practices or procedures and as such cannot establish that the bills are in fact business records of the hospital; and (iii) the plaintiff’s affiant failed to establish proper proof of mailing.

The defendant, GEICO, also cross-moves for summary judgment on the grounds that the plaintiff failed to provide all items requested by GEICO that were necessary to verify the claim, pursuant to 11 NYCRR 65-3.8 (a) (1), and which GEICO was entitled to receive pursuant to 11 NYCRR 65-3.5 (c). GEICO claims that the 30-day period within which the claim must be paid or denied was tolled due to its request for additional verification of the claim within 15 business days from GEICO’s receipt of proof of the claim.

Upon receipt of proof of the claim from St. Barnabas, GEICO alleges that it timely made a request for additional verification, specifically seeking a breakdown of which services constituted necessary emergency health services in order to issue appropriate payment on the claim (see aff of Kristen Savold ¶ 18 [B], annexed to defendant’s cross motion as exhibit B). In support of its cross motion, GEICO submits the State of New York Insurance Department’s Circular Letter No. 4 (2011) which partially amended section 5103 (b) (2) of the Insurance Law to prohibit a no-fault insurer from excluding from coverage necessary emergency health services rendered in a general hospital for any person who is injured as a result of operating a motor vehicle while in an intoxicated condition or while the person’s ability to operate the vehicle is impaired by the use of a drug within the meaning of Vehicle and Traffic Law § 1192. Circular Letter No. 4 further provides:

“For the purposes of compliance with Chapter 303, the Department interprets ‘necessary emergency health services’ to mean services rendered to a person by or under the supervision of a physician, paramedic, or emergency medical technician to treat the onset of sudden pain or injury and to stabilize the person, provided the person is transported{**55 Misc 3d at 788} directly from the scene of the motor vehicle accident to the general hospital. Pursuant to this interpretation, once the sudden pain or injury is treated and the person is stabilized, (generally in the emergency room) the no-fault insurance coverage ceases. In order to facilitate timely payment, a hospital should specify what portion of the bill consists of ‘necessary emergency health services.’ If the hospital does not specify what portion consists of ‘necessary emergency health services,’ then a no-fault insurer may request this information.” (See letter from GEICO to St. Barnabas dated May 16, 2016; NY St Ins Dept 2011 Circular Letter No. 4, RE: No-Fault Intoxication Coverage; Chapter 303 of the Laws of 2010, annexed to defendant’s cross motion as exhibit B.)

GEICO referenced the foregoing language from Circular Letter No. 4 in its letter requesting additional verification. GEICO specified in its request that St. Barnabas provide a “breakdown of charges up to where the patient was found to be stabilized.”

In its response, St. Barnabas stated that GEICO’s “request for a ‘breakdown of charges up to where the patient was found to be stabilized’ is not required under the insurance regulations or no fault law.” (See St. Barnabas response letter dated May 20, 2016, annexed to defendant’s cross motion as exhibit B.) St. Barnabas further responded that “[t]he patient received ‘Necessary Emergency Health Services’ during h[er] admission at the hospital.” (Id.)

The defendant, GEICO, further submits that it followed up with St. Barnabas for a second request for additional verification. To date, St. Barnabas has not responded to GEICO’s follow-up request.

GEICO also submits that it had a good faith basis for requesting additional verification of the bill at issue. In support of its cross motion, GEICO proffers the toxicology report for the insured provided by St. Barnabas with its bill, which shows that the patient had a blood alcohol level of .15% and tested positive for THC, an active ingredient in the drug marijuana, at the time of her admission to the emergency room. GEICO further proffers the physician affirmation of Dr. Kenneth Marici (see Dr. Marici affirmation and toxicology report, annexed to defendant’s cross motion as exhibit E). Based on the intoxication exclusion in GEICO’s policy, GEICO contends that the insured’s injuries are excluded from coverage (see{**55 Misc 3d at 789} policy endorsement, annexed to defendant’s cross motion as exhibit D). Thus, GEICO argues that its obligation to pay the plaintiff’s claim was limited to those items deemed “necessary emergency health services” and that it timely and properly requested additional verification from St. Barnabas in this regard.

GEICO argues that its timely request for additional verification indefinitely tolled the 30-day time period within which an insurer must pay or deny a claim until its receipt of the information requested. GEICO further argues that it would be inequitable for a provider to be rewarded for its failure to adequately respond to numerous timely requests for verification, relying upon Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]). Thus, GEICO posits that St. Barnabas’ action is premature since it failed to properly respond to GEICO’s request for verification, relying upon Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (44 AD3d 903 [2d Dept 2007]). Based on the evidence presented, GEICO seeks a determination that the hospital bill is not yet overdue and for this court to dismiss the complaint.

In opposition and reply, the plaintiff, St. Barnabas, contends that it demonstrated its prima facie entitlement to judgment as a matter of law by submitting the requisite billing form, the affidavit of its third-party biller, and confirmation that the plaintiff’s hospital bill, form NF-5, was received by the defendant. St. Barnabas further asserts that GEICO is precluded from interposing any defenses due to its failure to either pay or deny the claim within 30 calendar days after it received proof of the claim.

With regard to GEICO’s claim that it timely and properly requested additional verification, counsel for St. Barnabas mimics the hospital’s verification response letter stating that “there is no authority in the Insurance Law, No-Fault Regulations, or in case law which shows that the defendant’s verification request was proper.” (See plaintiff’s opposition to cross motion ¶ 29.) In support of its claim that the verification request was not proper, St. Barnabas’ counsel relies upon various statutory provisions that set forth the fee schedule and inpatient hospital billing pursuant to which claims must be paid.

Notably, St. Barnabas concedes that “regarding the defendant’s request for a ‘breakdown of charges up to the point where the patient was found to be stabilized,’ Insurance Law § 5103 (b) (2) was amended and took effect on January 26, 2011.” (Id.{**55 Misc 3d at 790} ¶ 44.) St. Barnabas agrees that the law was amended to prohibit insurers from excluding from coverage payment for “necessary emergency health care services” when a patient is intoxicated by alcohol or drugs. However, St. Barnabas finds untenable the defendant’s position that insurers are only required to pay for care until the patient is stabilized, claiming that GEICO has impermissibly interpreted the statutory language. St. Barnabas further submits that in this case, the patient was involved in a serious motor vehicle accident involving multiple injuries, and that “[t]his period of time was the patient’s treatment for ‘necessary emergency health care services.’ ” St. Barnabas contends that it “fully responded to the Defendant’s alleged verification requests.”

The court notes that St. Barnabas’ papers are silent as to Circular Letter No. 4 and the specific language permitting no-fault insurers to request additional information to ascertain which services are in fact “necessary emergency health services.”

Legal Analysis

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1988]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

A provider of medical services can establish a prima facie showing of entitlement to summary judgment by submitting proof that the requisite claim forms were mailed and received by the carrier and that payment is overdue (Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2d Dept 2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2d Dept 2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2d Dept 2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). Pursuant to 11 NYCRR 65-3.8 (a) (1), “No-fault benefits are overdue if not paid within 30 calendar days after{**55 Misc 3d at 791} the insurer receives proof of claim, which shall include verification of all . . . the relevant information requested pursuant to section 65-3.5 of this Subpart” (see also Insurance Law § 5106; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). An insurer can extend this 30-day time frame by making a timely request for additional verification of the claim “within 15 business days” after receipt thereof (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2d Dept 2009]; 11 NYCRR 65-3.5 [b]).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, 49 NY2d 557 [1980], supra).

The plaintiff has failed to establish a prima facie showing that it is entitled to judgment as a matter of law on its claim to recover no-fault medical payments. The plaintiff’s claim is premature as the evidence presented demonstrates that the 30-day time period within which an insurer must pay or deny a claim has not been triggered. In turn, the plaintiff failed to sufficiently respond to the defendant’s requests for additional verification.

The plaintiff’s position that the verification request was improper because it is not required under the insurance regulations or no-fault law is without merit. The defendant, GEICO, referenced Circular Letter No. 4 dated January 12, 2011, issued by the State of New York Insurance Department, in its original request for additional verification. The purpose of the Circular Letter is to advise no-fault insurers and health insurers of the amendment of Insurance Law § 5103 (b) (2) and to interpret the regulations related thereto. While the plaintiff concedes that the law was amended in January 2011 to reflect that insurers are prohibited from excluding from coverage necessary emergency health services even where the patient was intoxicated by alcohol or drugs, the plaintiff fails to address the portion of the Circular Letter at issue here. Specifically, the plaintiff submits no argument or opposition with regard to the portion of the Circular Letter that permits a no-fault insurer to request a hospital to specify what portion of the bill consists of “necessary emergency health services.” Rather, the plaintiff claims that the statutory language does not explicitly provide as such. The court disagrees. 11 NYCRR 65-3.5 (c) provides{**55 Misc 3d at 792} that “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

The court also disagrees with the plaintiff’s contention that it fully responded to the defendant’s verification requests by merely stating, “[t]he patient received ‘Necessary Emergency Health Services’ during h[er] admission at the hospital.” The plaintiff’s response is vague in that it fails to delineate whether some, most or all of the services were in fact “necessary emergency health services.” Further, in its Circular Letter, the Insurance Department contemplated the need for hospitals to specify what portion of the bill consists of such emergency services. The Insurance Department also defined “necessary emergency health services” as sudden pain or injury that is treated until the patient is stabilized, generally in the emergency room.

In the matter sub judice, the patient was admitted to St. Barnabas for approximately three days from April 10, 2016 through April 13, 2016. The defendant, GEICO, submitted sufficient proof in admissible form showing that the patient was intoxicated by alcohol and marijuana at the time of the accident. As such, GEICO was entitled to request information concerning the breakdown of services until the patient was found to be stabilized in accordance with Insurance Law § 5103 (b) (2), as amended, and the related Circular Letter No. 4 interpreting the statute. Such information would permit GEICO to assess when the no-fault insurance coverage ceases, if at all, and the appropriate amount of the claim that must be paid.

Pursuant to 11 NYCRR 65-3.6 (b), where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification. When a no-fault medical service provider fails to respond or inadequately responds to two timely verification requests, the 30 days in which to pay or deny the claim is tolled and does not begin to run. Accordingly, any claim for payment by the medical service provider after two timely requests for verification is premature (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2d Dept 2013]).

Thus, as the defendant correctly maintains, the plaintiff’s initial claim for payment was premature and was not complete{**55 Misc 3d at 793} until the defendant received additional verification of the claim as requested (see 11 NYCRR 65-3.8 [a] [1]; [b] [3]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2d Dept 2005]).

Where, as here, the insurer presents sufficient evidence that it timely requested additional verification and the hospital fails to provide the information requested, the complaint must be dismissed as premature (St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002]).

Accordingly, it is hereby ordered that the plaintiff’s motion (motion sequence No. 01) seeking summary judgment, pursuant to CPLR 3212, is denied; and it is further ordered that the defendant’s cross motion seeking summary judgment, pursuant to CPLR 3212, is granted, and the complaint is dismissed.