[*1]

Argued February 10, 2016; decided March 31, 2016

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, affirmed.

Defendant Avanguard Medical Group, PLLC claims that Insurance Law § 5102 requires a no-fault insurance carrier to pay a facility fee to a New York State-[*2]accredited office-based {**27 NY3d at 25}surgery (OBS) center for the use of its physical location and related support services. We conclude that neither the applicable statutory nor regulatory frameworks mandate payment for OBS facility fees.

I.

Avanguard is a professional service limited liability company, accredited under New York’s Public Health Law as a facility for the provision of OBS, defined as “any surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation” performed “in a location other than a hospital” (Public Health Law § 230-d [1] [h]). Its owner is a medical doctor who conducts OBS procedures at Avanguard on patients covered under article 51 of the Insurance Law, enacted as the Comprehensive Automobile Insurance Reparations Act (see L 1973, ch 13), commonly referred to as the “No-Fault Law” (see Pommells v Perez, 4 NY3d 566, 570 [2005]). The doctor billed for his professional services through Metropolitan Medical & Surgical P.C., and separately billed for facility fees associated with his OBS services through Avanguard. According to Avanguard, the OBS facility fees are a charge for the use of the physical location and equipment, and also include payment for technicians and medical assistants who helped with the surgical procedures.

Plaintiffs, insurers Government Employees Insurance Co.; GEICO Indemnity Co.; GEICO General Insurance Co., and GEICO Casualty Co. (collectively GEICO), paid the doctor’s professional fees, but declined reimbursement for the facility fees. GEICO then commenced this action in Supreme Court for a declaratory judgment that GEICO is not legally obligated under Insurance Law § 5102 to reimburse Avanguard for OBS facility fees. The disputed fees total in excess of $1.3 million.

GEICO unsuccessfully moved to stay Avanguard’s pending arbitration and judicial actions, and for a preliminary injunction against any new filings (2012 NY Slip Op 31516[U] [Sup Ct, Nassau County 2012]). GEICO thereafter sought summary judgment, which Supreme Court also denied (2013 NY Slip Op 33849[U] [Sup Ct, Nassau County 2013]). The Second Department reversed and granted GEICO’s motion for summary judgment declaring GEICO is not required to reimburse Avanguard for OBS facility fees (127 AD3d 60 [2d Dept 2015]). Subsequently the Second Department dismissed GEICO’s appeal from the order denying the preliminary injunction as “academic” {**27 NY3d at 26}(125 AD3d 803, 803 [2d Dept 2015]). We granted leave to appeal from the Appellate Division’s order granting GEICO’s motion for summary judgment (25 NY3d 907 [2015]).

II.

Avanguard asserts that pursuant to Insurance Law § 5102 (a) (1), OBS centers may recover a facility fee as a reimbursable “basic economic loss,” payable at a rate to be determined in accordance with 11 NYCRR 68.5. We reject Avanguard’s interpretation of the No-[*3]Fault Law framework, because it would permit Avanguard and other OBS centers to collect facility fees even though these types of fees are not expressly permitted by statute or payment schedules authorized thereby, and regardless of the fact that costs for the use of an OBS center are not reimbursable services under 11 NYCRR 68.5. Moreover, Avanguard’s view of the law undermines the obvious legislative purpose behind this framework, to contain costs by subjecting service charges to statutory ceilings and regulatory-fixed rates.

A. Legal Framework

Our analysis begins, as it must, with the statute. Indeed, “the text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning’ ” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012], quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). In accordance with the No-Fault Law, automobile insurers, like GEICO, must provide up to $50,000 of coverage for an insured’s “basic economic loss” (Insurance Law § 5102 [a]), which includes,

“[a]ll necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing{**27 NY3d at 27} recognized by the laws of this state; and (iv) any other professional health services” (Insurance Law § 5102 [a] [1]).

Expenses for basic economic loss, as described in this paragraph, “shall be in accordance with the limitations of” Insurance Law § 5108 (id.). Section 5108, titled “Limit on charges by providers of health services,” authorizes the Chair of the Workers’ Compensation Board to adopt fee schedules for basic economic losses, and mandates the Superintendent of the Department of Financial Services, in consultation with the Chair, to establish fee schedules “for all such services” not covered by the Chair’s schedules (Insurance Law § 5108 [b]).

Section 5108 also provides that basic economic loss service charges “shall not exceed the charges permissible” under the Chair’s schedule, “except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). Furthermore, a health care provider may not “demand or request any payment in addition to the charges authorized pursuant to this section” under the Chair and Superintendent’s fee schedules (Insurance Law § 5108 [c]). Enforcement is, in part, facilitated by mandated self-regulation, which requires an insurer to report to the Commissioner of Health, [*4]among other improper conduct, “any patterns of overcharging, excessive treatment or other improper actions by a health provider” (id.). As this language illustrates, the legislature sought to cap payments and impose uniform fee rates in accordance with the regulatory schedules.

The Chair and the Superintendent have promulgated fee schedules for a wide variety of reimbursable services (see Official New York Workers’ Compensation Medical Fee Schedule [eff June 1, 2012] [these services include, among others, allergy/immunology, anesthesiology, critical care, pain management, dermatology, and sports medicine]). This includes facility fees for hospitals and ambulatory surgery centers (ASC) (see New York State, Workers’ Compensation Board, Health Care Information, 2014 Medical Fee Schedules, http://www.wcb.ny.gov/content/main/hcpp/MedFeeSchedules/2014medfee.jsp [accessed Mar. 3, 2016], cached at http://www.nycourts.gov/reporter/webdocs/2014MedicalFeeSchedules.pdf). In addition, the Superintendent has promulgated Regulation 83, codified at 11 NYCRR 68.5, which provides two alternative methods for establishing payment for{**27 NY3d at 28} a health service, “reimbursable under section 5102(a)(1) . . . but is not set forth in fee schedules adopted or established by the superintendent.”

Under 11 NYCRR 68.5, “if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider . . . establish[es] a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule” (11 NYCRR 68.5 [a]). In those cases where the

“superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for [the] service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

As is obvious from its text, the regulation allows payment only for reimbursable services, and is structured to ensure consistency between those payments issued under the regulation, and those made pursuant to the Superintendent’s existing fee schedules.

B. Analysis of Avanguard’s Claims

It is undisputed that the fee schedules provide reimbursement for professional services delivered in an OBS setting, and include payment for a doctor’s services. It is also undisputed that the schedules do not expressly permit reimbursement for OBS facility fees, but do allow facility fee payments for hospitals and ASCs.

In support of its claim that the statute requires payment of OBS facility fees, Avanguard argues that a suitable facility is necessary to the provision of the surgical services covered by section 5102, and, therefore, costs associated with the facility constitute a “necessary expense” that are part of the reimbursable “basic economic loss.” Avanguard notes that [*5]arbitrators have awarded payment for OBS facility fees, suggesting that such fees are understood to fall within the statute’s intended coverage.

Avanguard’s argument misses the mark because the basic economic loss provided for under Insurance Law § 5102 (a) (1) {**27 NY3d at 29}is subject to the limitations of section 5108, which provides that charges for services “shall not exceed the [permissible] charges” promulgated under the Chair’s schedules. Here, no existing schedules provide reimbursement for OBS facility fees. Moreover, since facility fees are specifically mentioned and intended to be paid to hospitals and ASCs, the absence of such language with regard to OBS facilities is no mere oversight.

Avanguard argues alternatively that because the Superintendent has also failed to adopt a fee schedule that includes OBS facility fees, those fees are reimbursable under 11 NYCRR 68.5, which Avanguard claims serves as a catchall for all other services. Avanguard’s reliance on the Superintendent’s regulation is misplaced because 11 NYCRR 68.5 expressly applies solely to “professional health services” and facility fees are not services. Instead, they are expenses incurred for services. The difference is recognized in section 5102 (a) (1) which provides for reimbursement of expenses for services, and categorizes the types of procedures—e.g., medical, dental, surgical—and includes “any other professional health services” (Insurance Law § 5102 [a] [1] [iv] [emphasis added]). Since facility fees are not services, for purposes of 11 NYCRR 68.5, the fees cannot be recouped under the authority of this section.

Moreover, the intent gleaned from the language of 11 NYCRR 68.5 is that reimbursement for services should be provided in a manner that ensures consistency and thus inherently limits the range of payment amounts. However, because an OBS facility fee is a separate and recurring cost associated with a service, the inclusion of such a fee necessarily produces inconsistent results in total payment amounts within service categories.

To the extent Avanguard argues that based on the surgical and medical services it provides in its facility it should be treated similarly to hospitals and ASCs we note that unlike OBS centers, hospitals and ASCs are regulated under Public Health Law article 28, and are subject to strict standards under the Public Health Law and State Department of Health Regulations that cover, inter alia, facility licensing and maintenance (see 10 NYCRR part 446 [detailing the extensive reporting requirements], 10 NYCRR 400.3 [requiring all hospitals and ASCs to maintain and, if required, reproduce any medical report or record]). Their reimbursable facility fees are based on calculations implemented in the fee schedules and include a surcharge imposed by the State Health Care Reform Act ({**27 NY3d at 30}Public Health Law § 2807-j [1]), which helps subsidize uncompensated care (see Governor’s Approval Mem at 2, Bill Jacket, L 1996, ch 639, 1996 Legis Ann at 470).

By comparison, OBS facilities are not licensed by New York State or regulated by the Department of Health. Although Public Health Law § 230-d (1) requires that OBS providers meet the standards of a nationally-recognized accrediting agency, the Department of Health does [*6]not permit OBS practices to include the terms “facility,” “center,” or “clinic” as part of the business name (New York State, Department of Health, Office-Based Surgery [OBS] Frequently Asked Questions [FAQ’s] for Practitioners, https://www.health.ny.gov/professionals/office-based_surgery/obs_faq.htm [accessed Mar. 2, 2016], cached at http://www.nycourts.gov/reporter/webdocs/Office-BasedSurgery(OBS)FrequentlyAskedQuestions(FAQs)forPractition.pdf). Thus, we agree with the Appellate Division that given these differences between hospitals and ASCs, and OBS centers, there is no basis to interpret the statute to mandate reimbursement for OBS facility fees.

Notably, Avanguard does not challenge the legality of the fee schedules on the ground that the schedules fail to incorporate OBS facility fees. Indeed, Avanguard concedes that the Chair and Superintendent are authorized to promulgate schedules that deny reimbursement. Avanguard simply argues that in order to do so the administrators must expressly disallow payment. We disagree for several reasons. First, there is no statutory duty imposed on the Chair and Superintendent to announce the services and fees they intend to exclude from their schedules. Second, contrary to Avanguard’s suggestion, the administrators may exercise their administrative authority through silence, and as such implicitly reject reimbursement for OBS facility fees. Third, it would be unreasonable to interpret the No-Fault Law, which was intended “to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of [vehicular] accidents” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]), in a manner that encourages an even greater level of administrative minutia in the promulgation of what already are mathematically technical, complex fee schedules (see Official New York Workers’ Compensation Medical Fee Schedule [eff June 1, 2012]).{**27 NY3d at 31}

III.

As the statutory language illustrates, the legislature capped total payments for basic economic loss, and delegated the determination of fee rates to the Chair and the Superintendent. Neither administrator has chosen to include OBS facility fees in the regulatory schedules. It is not for this Court to decide, contrary to Avanguard’s contention, whether this is a “good idea” or if it would be better for patients covered by no-fault insurance, and for the efficient management of our health care system, to require reimbursement of OBS facility fees as a means to ensure that OBS facilities continue to be viable options for patients. “These policy determinations are beyond our authority and instead best left for the legislature” (People v Jones, 26 NY3d 730, 741 [2016], citing Matter of Manouel v Board of Assessors, 25 NY3d 46, 54 [2015]).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, with costs.

[*1]

Freiberg, Peck & Kang, LLP, Armonk, NY (Yilo J. Kang of counsel), for appellant.

Amos Weinberg, Great Neck, NY, for respondents.

In a proceeding pursuant to CPLR article 75 to stay arbitration of claims for no-fault benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 6, 2015, which denied the petition.

Ordered that the order is reversed, on the law, without costs or disbursements, the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the petitioner controls, is controlled by, or is under common control by or with an insurer authorized to transact business in New York and, thereafter, for a new determination of the petition, and the arbitration is stayed pending a new determination of the petition.

The petitioner, American Independent Insurance Co. (hereinafter AIIC), is a Pennsylvania corporation not licensed to do business in the State of New York. In 2011, AIIC commenced a proceeding in the Supreme Court, Queens County, to permanently stay arbitration of three claims for no-fault benefits on the ground that it was not subject to personal jurisdiction in New York. The Supreme Court, Queens County, inter alia, granted the petition in that proceeding. On appeal, this Court, inter alia, modified the order and denied the petition (see American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761 [2013]). In July 2014, AIIC commenced this proceeding in the Supreme Court, Kings County, to permanently stay arbitration of the same claims for no-fault benefits that were the subject of the first proceeding, as well as to permanently stay arbitration of two additional claims. AIIC alleged, inter alia, that arbitration should be stayed because the subject policies did not contain an agreement to arbitrate. The Supreme Court denied the petition.

The Supreme Court determined that AIIC was estopped from raising its current arguments because it should have raised them in the first proceeding. We disagree. In the first proceeding, AIIC argued only that it was not subject to personal jurisdiction in New York. Had AIIC argued the merits, it would have indicated an intention to submit to the court’s jurisdiction (see Taveras v City of New York, 108 AD3d 614, 617 [2013]; Rubino v City of New York, 145 AD2d 285, 288 [1989]). Furthermore, this proceeding is not barred by the doctrines of res judicata and/or collateral estoppel (see Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953 [2010]).

[*2] Article 51 of the Insurance Law is known as the Comprehensive Motor Vehicle Insurance Reparations Act and is commonly referred to as the No-Fault Law (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 17 [2009]). The purpose of this statute is to “ ’assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them’ ” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]).

Section 5107 of article 51, entitled “Coverage for non-resident motorists,” provides, in pertinent part, that “(a) Every insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of article six or eight of the vehicle and traffic law and to provide for the payment of first party benefits pursuant to subsection (a) of section five thousand one hundred three of this article when a motor vehicle covered by such policy is used or operated in this state” (emphasis added).

The enabling regulation to Insurance Law § 5107 provides, in relevant part, that “(b) The automobile liability insurance policies which are sold in any other state or Canadian province by an unauthorized insurer which is controlled by, or controlling, or under common control of, an authorized insurer shall be deemed to satisfy the financial security requirements of article 6 or 8 of the New York Vehicle and Traffic Law, and shall be deemed to provide for the payment of first-party benefits pursuant to section 5103 of the New York Insurance Law when the insured motor vehicle is used or operated in this State” (11 NYCRR 65-1.8 [b] [emphasis added]).

Section 5106 of the Insurance Law, entitled “Fair claims settlement,” provides, in pertinent part, that “(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent” (emphasis added).

Contrary to AIIC’s contention, the fact that the subject policies do not contain any agreement to arbitrate disputes involving the payment of first-party benefits does not preclude the respondents from exercising their option to arbitrate the underlying dispute in this proceeding. Although this Court has held, in the context of claims for uninsured or supplemental underinsured motorist benefits, that “ '[a] party will not be compelled to arbitrate absent evidence affirmatively establishing that the parties expressly agreed to arbitrate their disputes’ ” (Matter of Progressive Specialty Ins. Co. v Louis, 122 AD3d 637, 638 [2014], quoting Matter of State Farm Mut. Auto. Ins. Co. v Juma, 44 AD3d 963, 963 [2007]; see Matter of State Farm Mut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000]), those cases do not apply to claims for the payment of first-party benefits, ostensibly because Insurance Law § 5106 (b) mandates every insurer to provide a claimant with the option to arbitrate disputes concerning first-party benefits. Indeed, the obligation to arbitrate is not found in the policies but is imposed upon the policies by the No-Fault Law (see Ohio Cas. Group v Avellini, 54 AD2d 632 [1976], affd 43 NY2d 701 [1977]).

Here, it is undisputed that the respondents exercised their option to arbitrate the dispute over the payment of first-party benefits. It is further undisputed that AIIC is not licensed or authorized to transact business in this State. Nonetheless, AIIC’s policies may be deemed to satisfy New York’s financial security requirements and to provide for the payment of first-party benefits, which necessarily includes affording claimants the option to arbitrate disputes involving first-party benefits (see Insurance Law § 5106 [b]), if it is determined that AIIC controls, is controlled by or under common control by, or is with an authorized insurer (see Insurance Law § 5107 [a]). Although the respondents allege that AIIC falls within that criteria, there is insufficient evidence in the record to make such a determination. Therefore, the matter must be remitted to the Supreme Court, Kings County, for a hearing on the issue of whether AIIC controls, is controlled by, or is under common [*3]control by or with an authorized insurer and, thereafter, for a new determination of the petition. Dillon, J.P., Dickerson, Austin and Duffy, JJ., concur.

Decided on March 28, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.) entered August 22, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nancy M. Bannon, J.) entered August 22, 2013, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., ____ AD3d_____, 2016 NY Slip Op 00916 [2016]), and that the peer review reports of defendant’s chiropractor were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the copy of the November 4, 2011 peer review report, ostensibly submitted by defendant to establish the lack of medical necessity for the medical supplies underlying plaintiff’s claims in the amounts of $481.55 and $540.94, was incomplete, since certain pages of the report were missing, and was thus insufficient to establish the defense of lack of medical necessity.

The October 25, 2011 peer review report submitted by defendant made a prima facie showing that the medical supplies underlying plaintiff’s claims in the amounts of $1,107.70 and $1,150 were not medically necessary. However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U][App Term, 1st Dept. 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on March 23, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 17, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, 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 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff’s contention, plaintiff failed to establish a prima facie case, and the burden never shifted to defendant.

Defendant, in support of its cross motion, failed to demonstrate that it is not precluded from asserting the defense of fraudulent procurement of the policy, as defendant failed to establish that it had timely denied plaintiff’s claim (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant is not entitled to summary judgment on that ground. To the extent defendant also sought summary judgment on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s proffered evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decided on March 23, 2016

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

Decided on March 23, 2016

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

CV-027848-14/KI
Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion: Papers Numbered

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2-3

Replying Affidavits 4-5

Exhibits

Other

Upon review of the foregoing papers, defendant’s motion for summary judgment, and plaintiff’s cross-motion for summary judgment are decided as follows:

In this action to recover assigned first-party no-fault benefits, defendant moves for summary judgment to dismiss plaintiff’s claim on the basis that defendant is not the proper insurer. Although defendant states it is the insurer for a proper workers’ compensation claim, it claims it did not insure the assignor’s employer for no-fault claims. However, in its original motion, defendant submits only the affidavit of its attorney, which is not evidence and does not serve to establish its assertions for summary judgment (Cullin v Spiess, 122 AD3d 792, 793 [2d Dept 2014]). In its reply papers, defendant submits an affidavit from an employee who claimed to have reviewed the file and determined that defendant was not the proper insurer. However, the court cannot consider new facts submitted on reply (Rengifo v City of New York, 7 AD3d 773, 773 [2d Dept 2004]). Furthermore, defendant fails to attach the insurance policy, rendering its employee’s statements as to the alleged contents of the policy hearsay (Nassau Ins. Co. v Manzione, 112 AD2d 408, 409 [2d Dept 1985] [best evidence of policy language is the policy itself]). Moreover, the police report defendant offers is uncertified, and is therefore inadmissible (Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2d Dept 2009]). Accordingly, defendant’s [*2]motion for summary judgment is denied.

Plaintiff also moves for summary judgment and to compel discovery. However, plaintiff cannot assert that it is entitled to summary judgment if it also contends that discovery is not complete and that the incomplete discovery is needed (see CPLR 3212[f]; and see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], at *3 [App Term, 2d , 11th and 13th Jud Dists 2010]; Five Boro Psychological Servs., P.C. v Autoone Ins. Co., 27 Misc 3d 89, 90-91 [App Term, 2d , 11th and 13th Jud Dists 2010]). Accordingly, plaintiff’s motion for summary judgment is denied without prejudice. As defendant does not provide this court with any objections to plaintiff’s discovery requests, defendant must serve all nonprivileged information and documents responsive to plaintiff’s discovery requests on or before May 18, 2016 (All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], at *2-3 [App Term, 2d , 11th and 13th 2013]).

For the reasons stated above, defendant’s motion for summary judgment is denied, plaintiff’s cross-motion for summary judgment is denied, and plaintiff’s motion to compel discovery is granted, to the extent described above.

This constitutes the decision and order of the court.

Date: March 22, 2016
DEVIN P. COHEN
Acting Justice, Supreme Court

Decided on March 22, 2016

Civil Court of the City of New York, Kings County