SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 17, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.” The instant appeal by defendant ensued.

Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In regard to the two $990.48 claims for services rendered to assignor Avez, it is undisputed that plaintiff failed to respond to defendant’s verification requests. While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere. Consequently, the time in which defendant had to pay or deny the claims was tolled, and the branch of defendant’s motion seeking summary judgment dismissing the first and second causes of action, on the ground that they were premature, should have been granted (Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant’s denial of claim form, which denied the claims pertaining to assignor Rafailova on, among other grounds, a lack of medical necessity, together with defendant’s [*2]affirmed peer review report, established, prima facie, that there was no medical necessity for the services at issue. The fact that defendant’s peer reviewer considered medical records from plaintiff, as well as from other providers who treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; see generally East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009] [ in some instances, (the) regulations use the term applicant’ as a generic reference to both provider/assignees and injured persons”]). As a result, plaintiff’s contention that defendant must consider plaintiff’s bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit.

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat defendant’s motion for summary judgment. In view of the foregoing, and as plaintiff’s remaining contentions lack merit or are unpreserved for appellate review, the branch of defendant’s motion seeking summary judgment dismissing the [*3]third and fourth causes of action should also have been granted (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 142[A] 2009 NY Slip Op 50491[U]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 08, 2010

District Court of Nassau County, Second District

32836/08

Friedman, Harfenist, Langer & Kraut, LLP, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042, Attorney for Plaintiff

Rossillo & Licata, P.C. 355 Post Ave., Suite 204, Westbury, NY 11590, Attorney for Defendant

Michael A. Ciaffa, J.

Motion by defendant for summary judgment dismissing plaintiff’s no-fault claim is DENIED.

The papers submitted by defendant in support of its motion for summary judgment include proof of plaintiff’s admitted receipt of defendant’s denial, grounded upon a defense of lack of medical necessity. Although plaintiff’s counsel questions the sufficiency of defendant’s proof that the denial was mailed timely, cf Elmont Open MRI v. Progressive Cas. Ins. Co., 2009 NY Slip Op 50693 (Dist Ct Nassau Co.), plaintiff is in no position to contest the adequacy of defendant’s proof of timely mailing under the circumstances at bar. At least in cases, like this one, where plaintiff’s interrogatory responses admit receipt of the denial but aver that plaintiff keeps no record of the dates when denials are received, plaintiff should not be allowed to dispute the timeliness of the denial without making an affirmative allegation that the denial was received on or after a particular date. In the absence of such an affirmative allegation, the Court may properly assume that the denial was mailed on or about the date shown on the denial. Federal Courts routinely assume that notices are duly mailed “on the date shown on the notice” unless the recipient presents “sworn testimony or other admissible evidence” which provides a factual basis for challenging the assumption. See, e.g. Sherlock v. Montefiore Med. Center, 84 F3d 522, 526 (2nd Cir, 1996). [*2]

Moreover, since the denial presumably was received in an envelope which included evidence of a date of postmarking or postal metering, the Court can properly draw an adverse inference from plaintiff’s failure to retain and preserve the envelope. It appears well settled that a party’s failure to keep and produce “the postmarked envelope” may result in an “adverse inference” in cases involving an issue of timely mailing. See, e.g. Lewis v. U.S., 144 F3d 1220, 1223 (9th Cir. 1998).

Consequently, the Court need not reach the issue of whether defendant’s proof of timely mailing of its denial strictly satisfied the requirements of St. Vincent’s Hosp. v.

GEICO, 50 AD3d 1123 (2d Dept. 2008), and its progeny. Since plaintiff’s answers to interrogatories admitted receipt of the denial, and since plaintiff has averred that it kept no records indicating the date of receipt, the timeliness of defendant’s mailing is not a legitimate issue in dispute. The Court therefore turns to the sufficiency of defendant’s proof of its defense, on the merits, that the subject MRI was not medically necessary.

In support of defendant’s lack of medical necessity defense, defendant relies upon the affidavit and peer review report of Dr. Kevin Portnoy. The proof is in proper evidentiary form. The doctor’s opinion is based upon his review of medical records obtained as part of defendant s verification process. Dr. Portnoy appears to have the background, experience, and credentials to make a credible presentation on the issue of medical necessity. His report, on its face, sets forth a factual basis and medical rationale for the denial, supported by reference to certain articles and general guidelines respecting the performance of MRIs. Cf. Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005).

Nevertheless, it cannot be emphasized too strongly that summary judgment is a “drastic remedy” which should not be granted if there is “any doubt” respecting the existence of a triable issue. “Issue finding, not issue determination, is the key to the procedure.” Staten Island Hosp. v. Home Ins. Co., 148 AD2d 522 (2d Dept 1989), quoting Sillman v. Twentieth Century-Fox, 3 NY2d 395, 404 (1957); see also Millennium Radiology P.C. v. NY Central Mut. Fire Ins. Co., 2009 NY Slip Op 50877 (Civ Ct Richmond Co.).

Judged by these standards, defendant has not met its heavy burden. Although plaintiff perhaps would have been better served had it secured an affidavit from the doctor who prescribed the subject MRI, the doctor previously submitted to defendant a letter of medical necessity which sets forth his own factual basis and medical justification for the MRI. It states, in pertinent part: “After two months of treatment, patient still has neck pain and stiffness. An MRI of the Cervical Spine was warranted to further evaluate my patient and to rule out disc herniation and pathology.” The factual basis set forth is supported by medical documentation, showing claimant’s condition, day to day, in the weeks immediately preceding the MRI. Moreover, the MRI test results confirmed multiple disc herniations abutting the anterior aspect of the spinal canal.

Dr. Portnoy’s report never specifically addresses the treating doctor’s stated basis for the test. While he gives a number of examples of factors that would justify an MRI, he cites no [*3]specific medical authority or standards which state that an MRI would be contraindicated for a patient still suffering from a cervical trauma approximately two months post-accident. Moreover, he makes no effort “to explain how the [MRI] could be medical unnecessary when the test[] did in fact yield positive findings . . .” Nir, supra.

In short, when viewed in the context of the presumption of medical necessity, the treating doctor’s rationale, the medical records of claimant’s condition, and the heavy burden placed upon defendant under the caselaw governing summary judgment, the Court concludes that Dr. Portnoy’s report and affidavit fail to prove defendant’s entitlement to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment must be denied.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: June 4, 2010

CC:Friedman, Harfenist, Langer & Kraut, LLP

Rossillo & Licata, P.C.

MAC:ju

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 13, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without 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 that the supplies provided to plaintiff’s assignor were not medically necessary. The Civil Court granted the motion, finding that plaintiff’s opposition papers failed to rebut defendant’s showing that the supplies provided were not medically necessary. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for the supplies provided (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for [*2]summary judgment dismissing the complaint was properly granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 5, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, an affidavit from its peer review chiropractor and a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant’s showing that the services were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.
Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 13, 2006, plaintiff was required “to serve full and complete responses” to defendant’s discovery demands by a specified date or be precluded from offering such evidence at trial.

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Consequently, defendant moved for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5520 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated December 13, 2006, plaintiff was required “to serve complete verified responses to [d]efendant’s [w]ritten [d]iscovery demands” by February 26, 2007. The stipulation further provided that “[f]ailure to comply [with] the terms [of the stipulation] will result in [p]laintiff being precluded from offering evidence or testimony at trial.”

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Over a year after plaintiff’s deadline to comply with the so-ordered stipulation had passed, defendant moved to dismiss plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, over a year after the deadline and after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which we deem plaintiff’s appeal to be taken (CPLR 5520 [c]).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented [*2]plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion seeking to dismiss the complaint. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered May 21, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

The affidavit of defendant’s personal injury protection litigation representative sufficiently set forth her personal knowledge of defendant’s business practices and procedures, and sufficiently described defendant’s “standard office practice or procedure designed to ensure that items are properly addressed and mailed” (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). There is no merit to plaintiff’s contention that the affidavit did not establish that the claim denial forms were mailed on the date on which the affiant stated.

Plaintiff also argues that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs), but rather to show that such denials were sent and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Furthermore, contrary to plaintiff’s contention, defendant was not required to lay a foundation for plaintiff’s own records. Defendant was only required to demonstrate, as it did, that it had timely and properly denied the claim forms which are the subject of the action.

Defendant established both that the notices which scheduled the EUOs of plaintiff’s assignor were properly mailed by the law firm retained by defendant to schedule and conduct [*2]said EUOs (see Residential Holding Corp., 286 AD2d at 680) and that the assignor failed to appear (see Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The fact that said law firm was contacted by the assignor’s attorney to reschedule or to confirm the EUOs indicates that the attorney had communicated with the assignor and was acting on her behalf (see generally St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]).

In view of the foregoing, and as the appearance of plaintiff’s assignor at an EUO was a condition precedent to defendant insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant’s motion for summary judgment dismissing the complaint was properly granted, and plaintiff’s cross motion was properly denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. As to the claims pertaining to assignors Eridania Hiraldo and Manuel Espinal, defendant contended that such claims had been made pursuant to an insurance policy which had been cancelled prior to the date of the accident and that therefore there was no coverage for such claims. As to the claim pertaining to assignor Milton Williams, who was involved in a separate accident, defendant asserted that it had timely denied the claim on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion, and the instant appeal ensued.

Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed. [*2]

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

[*1]

Supreme Court, Appellate Term, Second Department, June 3, 2010

APPEARANCES OF COUNSEL

Rubin, Fiorella & Friedman LLP, New York City (Joseph Federici and Harlan R. Schreiber of counsel), for appellant. Lewin, Goodman, Baglio, LLP, Melville (James E. Coughlin of counsel), for respondent.

{**28 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Ordered that the appeal from the decision is dismissed; and it is further, ordered that the judgment is reversed without costs and the matter is remitted to the Civil Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Bhutta Realty Corp. v Sangetti, 165 AD2d 852, 853 [1990] [invoking CPLR 3222]; Coccio v Parisi, 151 AD2d 817 [1989] [same]). The sole legal issue presented by the submission was whether it was ascertainable, within one year of the subject accident, “that further expenses may be incurred as a result of the injury” (Insurance Law § 5102 [a] [1]). The Civil Court concluded that, because plaintiff’s assignor had submitted an application for no-fault benefits within two months of the subject accident, the injuries that would possibly require treatment were ascertainable, with minimal investigation or a simple inquiry, within a year of the date of the accident. A judgment was entered in plaintiff’s favor.

Insurance Law § 5102 (a) (1) provides for the payment of necessary medical and other expenses “all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” The no-fault regulations state that “an insurer shall not be liable for the payment of medical and other benefits enumerated in section 5102(a)(1) if, during a period of one year from the date of the accident, no such expenses have been incurred by the applicant”{**28 Misc 3d at 57} (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [3]). No-fault expenses are incurred at the time treatment is received (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

While the parties stipulated that plaintiff’s assignor had been involved in an accident on [*2]December 12, 2005, that plaintiff’s assignor had submitted an application for no-fault benefits on February 1, 2006, that plaintiff had provided services between January 3, 2007 and May 14, 2007, that plaintiff had established its prima facie case, and that defendant had not received any no-fault claims on plaintiff’s assignor’s behalf until January 18, 2007, the stipulation is silent as to whether plaintiff’s assignor had received any relevant treatment from any provider, and therefore incurred any relevant expenses, within the one-year period following the accident. “It is well established that a stipulation of facts pursuant to CPLR 3222 must cover all points in dispute” (Bhutta Realty Corp., 165 AD2d at 853; see also CPLR 3222 [b] [5]; Coccio, 151 AD2d 817 [1989]). In our opinion, the absence of this relevant information precludes a determination of the action upon the submission of agreed upon facts. The submission should have been dismissed as inadequate, and the parties permitted to submit a more definite statement of facts or proceed to a trial on the disputed issue (see Bhutta Realty Corp., 165 AD2d 852 [1990]; Coccio, 151 AD2d 817 [1989]).

Golia, J.P., Pesce and Rios, JJ., concur.

—[*1] Smith & Laquercia, LLP, New York, N.Y. (Robert W. Napoles of counsel), for appellant.

Goidel & Siegel, LLP, New York, N.Y. (Andrew B. Siegel of counsel), for respondent Vitaly Polyakov.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, New York Central Mutual Fire Insurance Company appeals from an order of the Supreme Court, Kings County (Balter, J.), dated June 17, 2009, which denied the petition and directed the parties to proceed to arbitration.

Ordered that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

On September 1, 2007, the respondent Vitaly Polyakov (hereinafter Polyakov) was involved in a motor vehicle accident while driving a motorcycle which he owned. Polyakov’s motorcycle hit the rear end of the automobile of the respondent P. Tsismanakis while that automobile was stopped at a traffic light on Coney Island Avenue in Brooklyn. Polyakov reported to the police officer who responded to the scene that an unidentified vehicle struck his motorcycle causing him to swerve and hit the Tsismanakis vehicle in the rear. The police accident report did not list any insurance information for either the Tsismanakis vehicle or the motorcycle. However, at the time of the accident, the respondent Mikhail Polyakov (hereinafter the named insured), Polyakov’s father, had a policy of automobile insurance issued by the petitioner, New York Central Mutual Fire Insurance Company. The only vehicle named under that policy as a covered vehicle was a 2001 Nissan Maxima owned by the named insured.

By letter dated September 28, 2007 (hereinafter the notice of accident), Polyakov’s counsel advised the petitioner that Polyakov was involved in the subject accident while he “occupied [an] uninsured vehicle.” Polyakov advised the petitioner of his intent to file a claim for no-fault first-party benefits under the subject policy as the son of the named insured who was a member of the same household. Polyakov also advised of his intent to pursue claims “under the hit and run provisions of the [subject] policy.” Notably, in the application for no-fault benefits signed by Polyakov, he asserted, inter alia, that the owner of the motorcycle he was driving was “unknown at this time.” [*2]

By letter dated October 12, 2007 (hereinafter the denial of claim), from the petitioner’s counsel to Polyakov’s counsel, Polyakov was advised that his claim for benefits under the supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) of the subject policy was denied. The petitioner averred that its investigation revealed that Polyakov was the titled owner of the motorcycle which he was riding at the time of the accident. In addition, the motorcycle was not an insured vehicle under the subject policy. Consequently, the petitioner advised Polyakov that his claim for SUM benefits must be denied because the SUM endorsement excluded coverage for bodily injury to an insured while occupying a motor vehicle owned by that insured which was not insured under the subject policy. The petitioner also reserved its rights to deny coverage for any additional reasons that later came to its attention.

By demand for arbitration dated March 5, 2009, submitted to the American Arbitration Association, New York State Sum Arbitrational Tribunal, Polyakov made a demand on the petitioner for arbitration of his claim for SUM benefits. On or about March 23, 2009, the petitioner commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration of Polyakov’s claim. The Supreme Court denied the petition and directed the parties to proceed to arbitration. We reverse.

The policy language in question was not ambiguous, and the petitioner was entitled to have the provisions it relied on to disclaim coverage enforced (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d 486, 487-488 [2006]; see generally Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592 [1996]; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865 [1977]). The SUM endorsement under the subject policy provided, in relevant part, that “[t]his SUM coverage does not apply . . . [t]o bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made.” This language is not ambiguous and the terms must be construed according to their plain and ordinary meaning. This policy exclusion unambiguously excluded from SUM coverage compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident with an uninsured vehicle, while occupying a motor vehicle he or she owns, which vehicle was not covered under the policy (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488; Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d 127, 129 [2005]; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d 829, 829-830 [1996]). There is no dispute that Polyakov, at the time of the accident, was occupying a vehicle, the motorcycle, that he owned but that was not covered under the subject policy.

In addition, contrary to Polyakov’s contention, the exclusion from coverage also would have been applicable under the mandatory uninsured motorists provision of the policy, which similarly provides that the petitioner does “not provide Uninsured Motorists Coverage for ‘bodily injury’ sustained: 1. By an insured while ‘occupying’, or when struck by, any motor vehicle owned by that ‘insured’ which is not insured for this coverage under this policy.” However, as the petitioner correctly argues, the mandatory uninsured motorists provision was removed from the subject policy by amendment pursuant to Section III of the Amendment of Policy Provisions—New York, and the SUM endorsement was added (see generally 11 NYCRR 60-2.3 [e]).

Accordingly, the petition should have been granted (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488; Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d at 129; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d at 829-830; cf. Matter of Metropolitan Prop. & Liab. Co. v Feduchka, 135 AD2d 715 [1987]; see generally Government Empls. Ins. Co. v Kligler, 42 NY2d at 864-865).

The parties’ remaining contentions either are without merit or have been rendered academic. Skelos, J.P., Covello, Hall and Sgroi, JJ., concur.