[*1]

[Recalled and vacated, see 148 AD3d 703.]

Israel Israel & Purdy, LLP, Great Neck, NY (Justin Skaferowsky of counsel), for appellant.

Printz & Goldstein, Woodbury, NY (Lawrence J. Chanice of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 4, 2014, AAAMG Leasing Corp., as assignee of Dawn Channer, appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Feinman, J.), entered March 3, 2015, as denied that branch of its cross petition which was for an award of an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4).

Ordered that the order and judgment is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the cross petition of AAAMG Leasing Corp., as assignee of Dawn Channer, which was for an award of an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4) is granted to the extent of awarding an additional attorney’s fee in the sum of $650, and is otherwise denied.

AAAMG Leasing Corp., as assignee of Dawn Channer (hereinafter the appellant), is a medical provider which made a claim for no-fault benefits from the petitioner insurance carrier. The petitioner denied the claim, stating that the supplies provided were not medically necessary.

The appellant sought arbitration of the claim, and in an award dated April 28, 2014, the arbitrator awarded the appellant the sum of $3,870.45, plus interest, and an attorney’s fee in the sum of $850.

The petitioner sought review of the arbitrator’s award by a master arbitrator. In a determination dated August 4, 2014, the master arbitrator affirmed the original arbitration award, and awarded an additional attorney’s fee in the sum of $650 pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (2) (i), which the master arbitrator stated was the maximum allowable fee.

The petitioner then commenced the instant proceeding pursuant to CPLR article 75 to vacate the master arbitration award dated August 4, 2014. The appellant cross-petitioned to [*2]confirm the arbitration award, and sought an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4). The petitioner opposed that demand for relief. In the alternative, the petitioner stated that the appellant’s fee should be limited to $650.

In the order and judgment appealed from, the Supreme Court confirmed the arbitration award. That branch of the cross petition which was for an award of an additional attorney’s fee was denied without comment. The appeal is limited to so much of the order and judgment as denied that branch of the cross petition which was for an award of an additional attorney’s fee.

The general rule is that in proceedings involving arbitration, as in other litigation, an attorney’s fee is not recoverable unless provided for by agreement or statute (see Myron Assoc. v Obstfeld, 224 AD2d 504 [1996]). Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” In a proceeding for judicial review of an award by a master arbitrator, an attorney’s fee shall be fixed by the court adjudicating the matter (see Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [4]; Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645 [1992]).

The limitations of an attorney’s fee recoverable in an appeal from a master arbitration award are set forth in Insurance Department Regulations (11 NYCRR) § 65-4.10 (j). Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (5) states: “No attorney shall demand, request or receive from the insurer any payment or fee in excess of the fees permitted by this subdivision for services rendered with respect to a no-fault master arbitration dispute.”

The maximum attorney’s fee for a master arbitration dispute is $65 per hour, up to a maximum fee of $650, plus an additional fee of $80 per hour for oral argument, if oral argument is requested (see Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [2] [i], [ii]). Additional fees may be awarded “if the master arbitrator determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services” (Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [3]).

In this case, the appellant did not ask for an attorney’s fee for oral argument, and there was no finding that the issues involved were novel or unique. Accordingly, the appellant was entitled to an award of an additional attorney’s fee in the sum of $650. Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ., concur.

Decided on May 17, 2016

Decided on May 13, 2016

Decided on May 13, 2016

Decided on May 5, 2016

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

Appeal from a decision of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), dated April 18, 2013, deemed from a judgment of the same court entered May 30, 2014 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,772.59.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $1,772.59. In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

Contrary to defendant’s assertion, plaintiff established its prima facie case, inasmuch as plaintiff’s bill and proof of mailing were admitted into evidence through the testimony of plaintiff’s owner, who testified that he had personally mailed the bill and that the bill had not been paid (see Viviane Etienne Med. Care., P.C. v Country-Wide Ins. Co., 25 NY3d 498, 502 [2015]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In support of its defense of exhaustion of the policy limits, defendant unsuccessfully attempted to have the applicable insurance policy’s declaration page, which set forth, among other things, the coverage limits of the policy (see e.g. Matter of Government Empls. v Ally, 106 AD3d 736 [2013]; Matter of State Farm Mut. Auto. Ins. Co. v Gray, 68 AD3d 1002 [2009]), admitted into evidence. Upon a review of the record, we find that the Civil Court erred in excluding the insurance policy declaration page from evidence. Defendant was not required to lay a CPLR 4518 (a) foundation for the declaration page, since a declaration page is not hearsay, but rather, as part of an insurance contract, it “has independent legal significance and need only be authenticated to be admissible” (All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 43 [*2]Misc 3d 27, 28-29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014], citing Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994] and Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Here, the testimony of defendant’s senior no-fault representative sufficiently identified the document as an accurate representation of the declaration page which defendant maintained electronically (see CPLR 4539 [a]; Kaliontzakis v Papadakos, 69 AD3d 803 [2010]). Furthermore, in describing defendant’s procedure for generating a declaration page, defendant’s witness satisfactorily set forth the “manner or method in which tampering or degradation of the reproduction is prevented” (CPLR 4539 [b]). Consequently, in view of the Civil Court’s improper exclusion of the declaration page, a new trial is warranted. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Decided on May 5, 2016

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

[*1]

Law Office of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, NY (John E. McCormack and Christina Perrone of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault insurance claims submitted by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered May 9, 2014, which granted the plaintiffs’ motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs’ motion for summary judgment on the complaint, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with costs to the defendant.

The plaintiffs commenced this action for a judgment declaring that they are not obligated to provide insurance coverage for any of the no-fault claims submitted to them by the defendant on the ground that the defendant failed to comply with conditions precedent to reimbursement under the no-fault laws and regulations and insurance laws of this state. After the defendant interposed its answer, the plaintiffs moved for summary judgment on the complaint. The plaintiffs argued, inter alia, that the defendant failed to comply with the provision of the insurance policy which required that the defendant submit to an examination under oath (hereinafter EUO), and therefore the plaintiffs were not obligated to provide insurance coverage for the no-fault claims submitted by the defendant. The defendant cross-moved for summary judgment dismissing the complaint, arguing, in effect, that the denial of claim letters issued by the plaintiffs were defective. The Supreme Court granted the plaintiffs’ motion and denied the defendant’s cross motion. The defendant appeals.

On appeal, the defendant contends, inter alia, that the plaintiffs’ motion for summary judgment should have been denied because the plaintiffs failed to establish, prima facie, that the letters scheduling the EUOs at issue were timely and properly mailed. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335 [1998]). “ ’The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ ” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 47). However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829-830).

As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs’ counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2015]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]).

Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of the timely and proper mailing of the EUO letters, their motion for summary judgment on the complaint should have been denied, regardless of the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]).

The defendant’s cross motion for summary judgment, however, was properly denied, as the defendant failed to establish, prima facie, that the denial of claim letters issued by the plaintiffs were conclusory, vague, or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2011]). Rivera, J.P., Balkin, Barros and Connolly, JJ., concur.

[*1]

Law Offices of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, NY (Rosemary E. Ross of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay certain no-fault claims submitted to it by the defendants, the defendant Sovereign Acupuncture, P.C., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered June 4, 2014, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against it and declaring that the plaintiff has no duty to provide coverage to it pursuant to the policies issued to Gwendolyn McAdam and Arthur Fedee.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the defendant Sovereign Acupuncture, P.C., is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

On December 13, 2011, a vehicle driven by the defendant Arthur Fedee, which was owned by the defendant Gwendolyn McAdam and contained three passengers, was involved in a collision. Fedee and two of the passengers sought medical care, and no-fault claims were submitted by their providers to the plaintiff, which insured McAdam (hereinafter collectively the claim one defendants). On December 22, 2011, a vehicle driven by the defendant Rouselie Bellefleur, which was owned by Fedee and contained two passengers, was also involved in a collision. Bellefleur and her passengers sought medical treatment and no-fault benefits, and the no-fault claims were submitted to the plaintiff, which insured Fedee (hereinafter collectively the claim two defendants).

Upon investigation, the plaintiff alleged that the accidents were intentionally staged and fraudulent. It thereafter commenced this action seeking a judgment declaring, inter alia, that it had no duty to provide coverage for the no-fault claims submitted to it by the medical providers who had provided treatment to the claim one and claim two defendants because the underlying accidents were deliberate and fraudulent. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Sovereign Acupuncture, P.C. (hereinafter Sovereign). The Supreme Court granted that branch of the motion and declared that the plaintiff had no duty to provide coverage for the claims submitted by Sovereign. Sovereign appeals. We reverse.

[*2] “ '[A]n intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance’ ” (Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2015], quoting Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]; see Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663, 664 [2015]).

In support of its motion, inter alia, for summary judgment on the complaint insofar as asserted against Sovereign, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the subject accidents were staged. The uncertified police accident reports submitted by the plaintiff were not admissible (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; Sanchez v Taveraz, 129 AD3d 506, 506 [2015]; Adobea v Junel, 114 AD3d 818, 820 [2014]; Hazzard v Burrowes, 95 AD3d 829, 831 [2012]; cf. Caldara v Utica Mut. Ins. Co., 130 AD3d 665, 666 [2015]). The plaintiff submitted an affidavit of its medical representative, but that representative relied largely on inadmissible evidence, and lacked personal knowledge of the facts surrounding the two collisions. Thus, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]). Moreover, the plaintiff failed to establish, prima facie, that McAdam and Fedee were in breach of their insurance contracts with the plaintiff because several defendants failed to attend their scheduled EUOs. The plaintiff failed to submit proof of mailing or evidence from someone with personal knowledge of the mailings of the EUO requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]).

In light of the foregoing, we need not reach Sovereign’s remaining contention. Mastro, J.P., Chambers, Roman and Maltese, JJ., concur.

Decided on April 25, 2016

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