Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Metropolitan Diagnostic Medical Care, P.C. (Metropolitan) commenced this action in the Civil Court on March 14, 2012 to recover first-party no-fault benefits for services provided to its assignor as a result of injuries that had been sustained in a motor vehicle accident. American Commerce Insurance Company (ACIC) answered the complaint, asserting, among other things, that Metropolitan’s action is barred by the doctrines of collateral estoppel and res judicata. Approximately one week before Metropolitan commenced its Civil Court action, ACIC had commenced a declaratory judgment action in Supreme Court, New York County, against Metropolitan and its assignor, Kester Alleyne, among others, alleging that Alleyne had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, ACIC is not obligated to pay any claims for first-party no-fault benefits submitted by Metropolitan as assignee of Alleyne arising from the accident in question. ACIC subsequently moved in Supreme Court for an order, pursuant to CPLR 3215, granting ACIC a default judgment. By “order and judgment” entered February 7, 2013, the Supreme Court awarded ACIC a declaratory judgment on default, declaring that ACIC had no obligation to pay Metropolitan or its assignor for any claims for no-fault benefits under the claim number at issue.

Thereafter, ACIC moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that Metropolitan’s cause of action is barred under the doctrines of res judicata and collateral estoppel. In opposition to the motion, Metropolitan submitted an affirmation by its counsel, who argued, among other things, that Metropolitan had been unaware of the Supreme Court action when it had commenced this action in the Civil Court, and that ACIC’s answer in the Civil Court had failed to assert the pendency of the declaratory judgment action as an affirmative defense. By order entered January 24, 2014, the Civil Court granted the branch of ACIC’s motion seeking summary judgment dismissing the complaint.

In light of the “order and judgment” in the declaratory judgment action, the present action [*2]is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). We note that, contrary to Metropolitan’s contention, defendant’s answer in the Civil Court, which answer had been filed after the Supreme Court declaratory judgment action had been commenced but before the default “order and judgment” had been entered, asserted that another action was “pending between the same parties for the same cause of action in a different court.” We also find no merit in the particular equitable estoppel argument raised by Metropolitan on appeal. Metropolitan’s remaining arguments similarly lack merit.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff’s motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2014 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 on the ground of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant’s motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant’s motion. By order entered November 21, 2012, the Civil Court granted defendant’s motion “with no opposition” and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant’s motion for summary judgment. Defendant opposed plaintiff’s motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff’s motion.

The Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff’s failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff’s claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant’s [*2]summary judgment motion (see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

Decided on February 22, 2016

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 8, 2008. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, among other things, that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, finding that the affidavit of plaintiff’s president and medical biller was insufficient to establish that plaintiff’s claim forms were admissible as business records. An appeal by plaintiff ensued, and by decision and order entered October 6, 2009, this court affirmed the order of the District Court. Thereafter, plaintiff moved for leave to renew its motion based upon a change in the law with respect to the requirements for the establishment by a plaintiff provider of its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). We note that, while plaintiff did not make its motion until 2014, the motion is not untimely since a final judgment has not been entered (see Dinallo v DAL Elec., 60 AD3d 620 [2009]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]).

It is now settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits [is] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Contrary to the determination of the District Court, plaintiff was not required to establish, as part of its prima facie case, that its claim forms were admissible for the truth of the matters asserted therein pursuant to CPLR 4518 (see Viviane Etienne Med. Care, P.C., 25 NY3d 498). A review of the record before us shows that plaintiff made its prima facie showing and, in opposition, defendant failed to raise a triable issue of fact. With respect to the $802 claim submitted by plaintiff as assignee of Darwin Jimenez, defendant failed to establish that its follow-up notice scheduling an examination under oath (EUO) had been timely mailed (see 11 NYCRR 65-3.6 [*2][b]). Furthermore, with respect to the $1,277 and $995 claims submitted by plaintiff as assignee of Gilberto Estevez, while defendant’s papers reflect that Estevez appeared for an EUO on July 30, 2003, defendant’s own submissions showed that defendant did not deny those claims until October 1, 2003.

Consequently, defendant failed to demonstrate that it had tolled the time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defenses (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), that Jimenez had failed to appear for an EUO, and that the EUO testimony of Estevez had failed to establish proof of the $1,277 and $995 claims.

Accordingly, the order is reversed and plaintiff’s motion for summary judgment is granted.

The decision and order of this court entered herein on October 6, 2009 (25 Misc 3d 128[A], 2009 NY Slip Op 52068[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) are hereby recalled and vacated (see motion decided simultaneously herewith).

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

Decided on February 18, 2016

[*1]

Carroll McNulty & Kull, LLC, New York City (Ann Odelson of counsel), for appellant.

Craig T. Bumgarner, Carmel, for respondent.

Devine, J. Appeal from an order of the Supreme Court (Schick, J.), entered May 29, 2015 in Sullivan County, which, among other things, granted plaintiff’s motion for summary judgment declaring that defendant has a duty to defend and/or indemnify plaintiff in an underlying action.

Defendant issued a commercial general liability insurance policy to plaintiff, a construction firm, effective from October 2008 to October 2009. Plaintiff was the general contractor at a construction site where, in February 2009, Allan Speirs was injured in the course of his work for a subcontractor. Defendant was notified of the occurrence in March 2009. Plaintiff then learned that Speirs had allegedly sustained serious injuries in the accident and had retained counsel and, in January 2010, that information was promptly forwarded to defendant.

Speirs commenced an action against plaintiff and the owner of the construction site in August 2011, alleging violations of Labor Law §§ 200 and 241 (6), as well as common-law negligence. In November 2011, plaintiff was served with the summons and complaint pursuant to Business Corporation Law § 306 but, because its registered agent was the defunct law firm that handled its 1965 incorporation, it did not receive those documents. Plaintiff accordingly defaulted, and neither it nor defendant became aware of the personal injury action until counsel for Speirs alerted defendant to that fact in March 2012. Defendant disclaimed coverage because, among other things, plaintiff had failed to give it notice of the personal injury action as required by the liability policy.

Plaintiff thereafter commenced this action seeking a declaration that defendant is required to defend and indemnify it in the personal injury action. Following joinder of issue, plaintiff moved, and defendant cross-moved, for summary judgment. Supreme Court granted [*2]summary judgment to plaintiff, and defendant now appeals.

We reverse. The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 440 [1997]; see American Tr. Ins. Co. v Sartor, 3 NY3d 71, 75-76 [2004]). “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” (American Tr. Ins. Co. v Sartor, 3 NY3d at 76; see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]). At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).^[FN1] The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496 [2002]; see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).

There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v Sartor, 3 NY3d at 76; Kalthoff v Arrowood Indem. Co., 95 AD3d 1413, 1415 [2012], lv denied 19 NY3d 815 [2012]). That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” (233 E. 17th St., LLC v L.G.B. Dev., Inc., 78 AD3d 930, 932 [2010]). Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” (Kalthoff v Arrowood Indem. Co., 95 AD3d at 1415; see Briggs Ave. LLC v Insurance Corp. of Hannover, 11 NY3d 377, 381 [2008]; AH Prop., LLC v New Hampshire Ins. Co., 95 AD3d 1243, 1244-1245 [2012]).

Plaintiff nevertheless argues that it is entitled to summary judgment because defendant was not prejudiced by the lack of timely notice of suit, pointing to analogous cases involving supplemental uninsured and underinsured motorists coverage where timely notice of an occurrence, but not of the ensuing legal action, was given (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 475; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). The Court of Appeals observed in those cases, however, that the “no-prejudice” rule had less potency in the context of such coverage because an insurer was able to protect its interests due to its receipt of the separate no-fault claim (see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). In contrast, “[t]he rationale of the no-prejudice rule is clearly applicable to a late notice of lawsuit under a liability insurance policy,” as a liability insurer is [*3]unlikely to obtain pertinent information through other means, impairing its ability “to take an active, early role in the litigation process and in any settlement discussions and to set adequate reserves” (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 340). The “no-prejudice” rule accordingly applies to the case before us, and the failure of defendant to affirmatively establish prejudice is of no moment (see id.; Liberty Moving & Stor. Co., Inc. v Westport Ins. Corp., 55 AD3d 1014, 1016-1017 [2008], lv denied 12 NY3d 709 [2009]; 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co., 54 AD3d 593, 593-594 [2008]).^[FN2] Thus, defendant should have been awarded summary judgment dismissing the complaint.

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the order is reversed, on the law, with costs, plaintiff’s motion denied, defendant’s cross motion granted, summary judgment awarded to defendant and complaint dismissed, and it is declared that defendant has no duty to defend or indemnify plaintiff in the underlying action.

Footnotes

Footnote 1:Amendments to Insurance Law § 3420 subsequently took effect that prevented an insurer from disclaiming coverage “unless the failure to provide timely notice has prejudiced” it (Insurance Law § 3420 [a] [5]; [c] [2], as added by L 2008, ch 388; see Rosier v Stoeckeler, 101 AD3d 1310, 1312 [2012]).

Footnote 2:Regardless of the fact that defendant was not required to show prejudice, plaintiff is far from persuasive in asserting that defendant could not have been prejudiced by the absence of timely notice of suit. As a result of the lack of notice, defendant lost the opportunity to “appear and interpose an answer” on plaintiff’s behalf as of right, although counsel for Speirs was apparently willing to show leniency in that regard (American Tr. Ins. Co. v Rechev of Brooklyn, Inc., 57 AD3d 257, 257 [2008]).

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

Defendant’s motion for summary judgment dismissing this first-party no-fault action on the ground of lack of medical necessity should have been denied. The independent medical examination (IME) report of defendant’s chiropractor/acupuncturist, one Antoinette Perrie, was not in admissible form and should not have been considered. The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106 (see Walker v Village of Ossining, 18 AD3d 867, 868 [2005]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Nor was the report shown to have been properly “sworn to” before a notary or other authorized official (see Hartley v White, 63 AD3d 1689, 1690 [2009]; Feggins v Fagard, 52 AD3d 1221, 1223 [2008]; see also Gleason, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C2106:4. P 609-610).

Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

[*1]

Jason Tenenbaum, P.C., Garden City, NY (Eric Wahrburg of counsel), for appellant.

Don L. Hochler, P.C., Woodbury, NY (Don L. Hochler of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance claims submitted by the defendant, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered November 17, 2014, as denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

On March 25, 2012, Juana Coyotl was injured in an automobile accident. At the time of her accident, Coyotl was insured under an automobile liability policy issued by the plaintiff, which contained a “no-fault” provision covering any necessary expenses incurred by Coyotl as a result of such an accident. Coyotl assigned these insurance benefits to the defendant, which provided her with medical treatment for the injuries she sustained in the accident. The defendant then billed the plaintiff for the costs of treating Coyotl, but the plaintiff denied the defendant’s claims on the ground that the services rendered were not medically necessary.

The plaintiff subsequently commenced this action seeking a declaration that it was not obligated to pay the defendant for no-fault benefits relating to Coyotl’s treatment, since those services were not medically necessary. The plaintiff moved for summary judgment, contending that its denials of coverage were properly and timely sent to the defendant, and that the treatment rendered to Coyotl by the defendant was not medically necessary. The Supreme Court denied the motion.

Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2015]). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.

Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2012]).

However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.

The plaintiff’s remaining contentions are without merit. Mastro, J.P., Hall, Maltese and LaSalle, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, February 9, 2016

APPEARANCES OF COUNSEL

Lawrence Robert Miles, Long Island City, for defendant.

Perchekly Law Group, P.C., Brooklyn, for plaintiff.

Defendant’s motion for summary judgment, submitted on default and without written opposition or appearance by the plaintiff, is decided as follows:

Factual Background

In this action to recover assigned first-party no-fault benefits, plaintiff submitted claims for payment for medical services it rendered to Kenia Perez in August, September and October 2013. Defendant does not contest that it received the claim from plaintiff, but denied the claim [*2]because it claims plaintiff did not bill the services in accordance with the applicable fee schedule. Defendant recalculated the amount pursuant to its reading of the fee schedule, and paid plaintiff the amount it calculated.

Discussion

Defendant moves for summary judgment on the basis that it paid plaintiff the amount to which plaintiff was entitled pursuant to the fee schedule. Defendant further contends that, under the amended version of 11 NYCRR 65-3.8, which applies to services rendered after April 1, 2013, plaintiff must prove it billed in accordance with the fee schedule in order to make its prima facie case.

Pursuant to 11 NYCRR 65-3.8 (g) (1),

“[p]roof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances: . . .

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.”

Defendant argues that the amendments to 11 NYCRR 65-3.8 (g) (1) change the nature of plaintiff’s prima facie proof. As set forth below, this court holds that the insurer’s objection to plaintiff’s alleged over-billing remains an affirmative defense. Thus, the only issue is whether the defense is precluded or not precluded if it is rendered later than 30 days after defendant receives the claim (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 510 [2015]).{**51 Misc 3d at 443}

As the Court of Appeals made clear in Viviane Etienne,

“a medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to reimbursement of overdue benefits when it proves that it submitted a completed claim form to the insurer. A claim is overdue if it is not denied or paid within 30 days of the insurer’s receipt of proof of claim” (id. at 507).

The language of 11 NYCRR 65-3.8 (g) (1) does not conflict with the holding in Viviane Etienne. The regulation does not place any additional requirements on the medical provider, such as a requirement, in the general case, to substantiate the calculation of its fees. The plain language of the regulation requires that the insurance company determine if the medical provider billed its services in accordance with the applicable fee schedule. If the insurance company determines that the bill contravenes the fee schedule, the regulation states that the insurance company need not pay the bill. Therefore, the burden remains on the insurer to assert a defense that the provider billed in excess of the fee schedule.

Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65-3.8 (a) (1), which states that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.” Conversely, 11 NYCRR 65-3.8 (g) (1) imposes no deadline on the insurance company’s determination. At least two courts in the First Department concur with this court’s interpretation of 11 NYCRR 65-3.8 (g) (1) (see Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d [*3]336, 344-345 [Civ Ct, Bronx County 2015]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85, 87 [App Term, 1st Dept 2015]).

Based on this interpretation of 11 NYCRR 65-3.8 (g) (1), defendant may assert in this action a defense that plaintiff’s claim exceeds the applicable fee schedule. In support of this defense, defendant submits the affidavit of Veronica Pabon, a certified medical coder and biller employed by defendant as a fee schedule team leader (Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U], *2 [App Term,{**51 Misc 3d at 444} 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Ms. Pabon states that defendant paid plaintiff, an acupuncturist, in accordance with the rate paid to chiropractors for the same services (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23, 24-25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Ms. Pabon described the process by which defendant calculated the fees and supported those calculations with reference to the applicable fee schedule. Defendant also provided copies of the checks it sent to plaintiff. Based on this unopposed evidence, defendant paid plaintiff in accordance with the fee schedule, and does not owe plaintiff any additional payment.

For the foregoing reasons, defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.

Decided on February 5, 2016

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