—[*1] Craig Meyerson, Latham, N.Y., for appellants.

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the plaintiffs appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 16, 2008, as denied their motion for summary judgment on the complaint and granted those branches of the defendant’s cross motion which were for summary judgment dismissing the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes of action, and (2) from so much of an order of the same court entered July 2, 2008, as, upon reargument, adhered to the original determination in the order entered January 16, 2008.

Ordered that appeal from the order entered January 16, 2008, is dismissed, as that order was superseded by the order entered July 2, 2008, made upon reargument; and it is further,

Ordered that the order entered July 2, 2008, is modified, on the law, by deleting the provisions thereof, upon reargument, adhering to the original determination in the order entered January 16, 2008, granting those branches of the defendant’s cross motion which were for summary judgment dismissing the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes of action, and substituting therefor a provision, upon reargument, vacating so much of the order entered January 16, 2008, as granted those branches of the cross motion; as so modified, the order entered July 2, 2008, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of those branches of the cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

The plaintiffs, as assignees of no-fault benefits (see Insurance Law § 5101 et seq.), brought this action to recover for health services rendered to the beneficiaries of the defendant’s no-fault insurance contracts. Each assignor received medical treatment from the plaintiffs following separate automobile accidents. The complaint contained 17 causes of action. The plaintiffs moved for summary judgment on the complaint and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, inter alia, denied the plaintiffs’ motion, and granted those branches of the defendant’s cross motion which were to dismiss the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes [*2]of action. The court concluded that, because the assignors in the aforementioned causes of action were injured during the course of their respective employment, the plaintiffs were barred from recovery pursuant to Workers’ Compensation Law § 11. The plaintiffs moved, and the defendant cross-moved, for leave to reargue. Upon reargument, the court adhered to its original determination. We modify.

There has been no determination by the Workers’ Compensation Board as to whether the assignors are entitled to Workers’ Compensation benefits for their injuries (see Nunes v Window Network, LLC, 54 AD3d 834, 835 [2008]; cf. Thompson v Grumman Aerospace Corp., 78 NY2d 553 [1991]). The Workers’ Compensation Board has primary jurisdiction to determine factual issues concerning coverage under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Bastidas v Epic Realty, LLC, 58 AD3d 776 [2009]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Where “a plaintiff fails to litigate that issue before the Board, ‘the court should not express an opinion as to the availability of compensation but remit the matter to the Board’ ” (O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008], quoting Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Accordingly, in considering the defendant’s cross motion, the Supreme Court should not have entertained the defendant’s contention that the plaintiffs were barred from recovery pursuant to Workers’ Compensation Law § 11. Those claims must be referred to the Workers’ Compensation Board for a determination as to whether the plaintiffs have a valid cause of action to recover no-fault benefits, or whether they are relegated to benefits under the Workers’ Compensation Law (cf. O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d at 634; Nunes v Window Network, LLC, 54 AD3d at 835).

The Supreme Court properly denied the plaintiffs’ motion for summary judgment on the complaint, as the plaintiffs failed to demonstrate, prima facie, their entitlement to judgment as a matter of law.

The plaintiffs’ remaining contentions either are without merit or have been rendered academic in light of our determination. Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.

[*1]

Civil Court of the City of New York, Queens County, July 27, 2009

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Melissa A. Pirillo of counsel), for plaintiff. Law Office of Teresa M. Spina, Woodbury (John Dupuy of counsel), for defendant.

{**25 Misc 3d at 546} OPINION OF THE COURT

William A. Viscovich, J. [*2]

Due to the similarity of the factual background and legal issues to be determined in these matters, the two cases herein were consolidated for trial purposes before this court. After a pretrial conference, the parties stipulated on the record as follows as to both cases:

1. Plaintiff has established its prima facie case as a matter of law;

2. Defendant has issued timely verification requests to the plaintiff’s attorney;

3. The plaintiff’s attorney responded to those verification requests with identical “compliance letters” in each case.

Also, while not stipulated to on the record, the following facts are undisputed. In the first action (Isabel Graulan), plaintiff submitted one bill totaling $676.98 for supplies rendered to the claimant for date of service August 15, 2007. Along with the bill was a letter from plaintiff’s counsel requesting that any and all verification requests be directed to their office. Defendant timely received this bill on or about August 15, 2007. Thereafter, defendant timely requested from plaintiff’s attorney additional verification on August 24, 2007, with a follow-up request on September 24, 2007, both seeking a narrative report of the patient’s initial consultation from the prescribing/referring physician (specifically, naming one Dr. Goldman).{**25 Misc 3d at 547}

Likewise, in the second action (Cesare Iori), plaintiff timely submitted a bill totaling $372.98 for supplies rendered to the claimant for date of services July 17, 2007 (again with a letter from plaintiff’s attorney requesting that any and all verification requests be directed to their office), which defendant timely received on or about July 25, 2007. Thereafter, defendant timely requested additional verification on August 14, 2007, with a follow-up request made on September 18, 2007 seeking a manufacturer’s invoice documenting the cost of the medical equipment or supplies and proof of payment for the medical equipment or supplies.

In both cases, the plaintiff’s attorney responded to the verification requests after the follow-up letter had been sent. These self-titled “compliance letters” read, in part, as follows:

“Please be advised that the bills, medical reports, assignment of benefits and proof of claim were previously provided with the initial submission of the claim for the above-referenced patient. Be further advised that this response constitutes full compliance with any purported requests and constitutes the provider’s submission of all relevant documents in the provider’s possession. Any further requests should be directed to the party that possesses such other information. Therefore any further requests to this provider are deemed unnecessary and in violation of 11 NYCRR § 65-3.2 (c)” (emphasis added).

A review of the transcript of the proceeding reveals some confusion as to the exact nature of the issues to be decided. Nonetheless, based upon the transcript and the briefs submitted by the parties, the court has determined that the following issues control its decision in these matters:

1. Were defendant’s verification requests proper;

2. If so, were plaintiff’s responses to the defendant’s verification requests sufficient; and [*3]

3. If not, was defendant obligated to respond further to plaintiff in some form to communicate its position that the response was insufficient or could it remain silent?

Discussion of Law

Defendant’s Verification Requests Were Proper

An insurance carrier is permitted to request additional information from a claimant through a proper and timely verification{**25 Misc 3d at 548} request. (See generally 11 NYCRR 65-3.5 [b].) While the materials an insurer may request are not unlimited (see generally 11 NYCRR 65-3.5 [b]), the Insurance Law and regulations clearly outline an insurer’s right to request and receive information necessary to the processing of a provider’s claim for no-fault benefits. Furthermore, “[t]he insurer is entitled to receive all items necessary to verify the claim.” (See 11 NYCRR 65-3.5 [c].) As such, the issue for this court to determine is whether the verification requests in each of these cases were in some way inappropriate or otherwise beyond the scope of a proper verification request.

In the Graulan matter, the insurer requested “a narrative report of the patient’s initial consultation from the prescribing/referring physician (Dr. Goldman).” In the Iori matter, the insurer requested a “manufacturers invoice documenting the cost of the medical equipment or supplies” and “proof of payment for the medical equipment or supplies.” In both cases, the court finds that said requests were reasonable and in accordance with the statutory and regulatory framework of New York State’s no-fault insurance statutes and regulations.

As such, the court must now address the issue of the sufficiency of plaintiff’s responses to the defendant’s verification requests.

In the Graulan Matter, Plaintiff’s Response to Defendant’s Verification Request was Sufficient

In the Graulan matter, the defendant’s reasonable verification request was for “a narrative report of the patient’s initial consultation from the prescribing/referring physician (Dr. Goldman).” The plaintiff’s response, while pro forma, did clearly state that “further requests should be directed to the party that possesses such other information.” In this matter, that party seems to be one Dr. Goldman, who was likely known to the insurer, as evidenced by the doctor’s name being placed on the verification request.

Pursuant to 11 NYCRR 65-3.2 (e) and (f), an insurer is under a duty to “[c]learly inform the applicant” of its position and must “[r]espond promptly . . . to all communications from . . . attorneys,” including responses to verification requests. Indeed, an insurer is required to respond to a response to a verification request, regardless of whether it feels the response is sufficient. (See All Health Med. Care v Government Empls. Ins. Co., 2 Misc 3d 907 [Civ Ct, Queens County 2004, Agate, J.]; Lenox Hill Radiology, P.C. v Allstate Ins. Co., Civ Ct, NY County, 2008,{**25 Misc 3d at 549} Moulton, J., index No. 076/08; Media Neurology, P.C. v Countrywide Ins. Co., 21 Misc 3d 1101[A], 2008 NY Slip Op 51902[U] [Civ Ct, Kings County 2008, Ash, J.].) [*4]

At the very least, given that the response to the verification request was somewhat on point, the defendant should have responded to the verification response as being insufficient. More importantly, however, defendant should have forwarded a verification request to Dr. Goldman, or if it could not locate Dr. Goldman, the defendant should have requested that plaintiff provide contact information for him. Either way, had no response been forthcoming from either Dr. Goldman or plaintiff, this action would be premature and the court would be inclined to dismiss it as such due to the plaintiff’s failure to provide a legitimate verification response.

Given the defendant’s failure to take action on plaintiff’s marginally acceptable verification response, the court finds in favor of the plaintiff in the amount of $676.98 plus statutory interest, attorneys fees and costs and disbursements.

In the Iori Matter, Plaintiff’s Response to Defendant’s Verification Request was Insufficient and as Such Defendant was Not Obligated to Respond Further to Plaintiff in Some Form to Communicate Its Position the Response was Insufficient

Unlike the previous matter, the court finds that plaintiff’s response to the defendant’s request for verification was insufficient. As previously decided herein, the defendant’s verification request for a “manufacturers invoice documenting the cost of the medical equipment or supplies” and “proof of payment for the medical equipment or supplies” was eminently reasonable.

While plaintiff’s response in this matter was identical to the response in the previous matter, it was, at best, vague, disingenuous and totally lacking in any guidance that the defendant could find useful in obtaining the requested information. It contained neither the information requested nor alternative information sufficient to allow the defendant to expedite either payment or denial of the claim. Nor was there any indication, as in Graulan, that defendant might know whom to contact other than the plaintiff.

Here it should be pointed out that the requested items, unlike in the previous case, were likely in the control of, or at least accessible to the plaintiff. This court finds it extremely difficult to believe that plaintiff, with the assistance of counsel, who was basically acting as its billing agent (see Lenox Hill Radiology &{**25 Misc 3d at 550} MIA P.C. v Global Liberty Ins., 20 Misc 3d 434 [Civ Ct, NY County 2008, Bluth, J.], could not obtain either a manufacturer’s invoice or a proof of payment for the items provided. In that case, involving the same plaintiff’s firm, it seems that the response to the verification request therein was identical to the responses contained herein.

Courts have endorsed not only the legal obligation to respond to verification requests, but have distinctly addressed the contractual and professional obligation to likewise respond. In the case of Dilon Med. Supply Corp. v Travelers Ins. Co. (7 Misc 3d 927 [Civ Ct, Kings County 2005]), the court stated that “when a claimant submits bills to an insurer for payment, the claimant, who stands in the shoes of his assignor, must deal in good faith and cooperate with the insurer if it wants to get paid” (id. at 930). The court further outlined a good faith duty with [*5]respect to responses to verification requests, noting that “even if the claimant believes it cannot or need not comply with the insurer’s request, the claimant still has a duty to communicate with the insurer regarding the request” (id. at 931).

While in that case, unlike here, there was no response whatsoever to defendant’s verification request, the plaintiff’s response herein hardly constitutes good faith and is made more unacceptable by the language contained therein that it constituted “full compliance with . . . purported [verification] requests” and that “any further requests to this provider are deemed unnecessary and in violation of 11 NYCRR § 65-3.2 (c).”

As Judge Bluth stated in Lenox Hill Radiology & MIA PC v Government Empls. Ins. Co. (NYLJ, Aug. 27, 2008, at 27, cols 1, 2 [index No. 39CVN 2008]),

“[J]ust because plaintiff’s attorney labeled the letters ‘Verification Compliance’ does not make it so. The label is meaningless; in no way can any literate person possibly construe that letter as complying with the verification request. No verification was supplied. Those letters, which completely ignored defendant’s bona fide requests . . . specifically informed defendant that plaintiff would not be providing whatever information may have been requested. Plaintiff’s attorneys’ self-serving and threatening . . . letters did not call for a response—in fact, by specifically putting the defendant on notice that nothing else would be forthcoming{**25 Misc 3d at 551} and that any further request would be ‘unnecessary and in violation of 11 NYCRR § 65-3.2(c)’—plaintiff’s attorneys instructed defendant not to respond. Moreover, 11 NYCRR § 65-3.2 (f) only requires the insurer to respond when a response is indicated and here, no response was indicated” (emphasis added).

While the court is reluctant to impose this limitation on plaintiffs, given that the history and purpose of New York State’s enactment of the No-Fault Law is to ensure the prompt and expeditious payment of claims (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 284 [1997]), there is a somewhat competing policy concern that an insurer “is entitled to receive all items necessary to verify the claim” (see 11 NYCRR 65-3.5 [c]). Allowing the document submitted by plaintiff to qualify in this matter as a legitimate verification response could encourage no-fault plaintiffs to simply ignore verification requests based upon their own interpretation of what constitutes a valid response. As in this particular matter, they would then be able to provide nonresponsive “verifications” on their own terms, thus enabling them to move matters prematurely into litigation without a full prior vetting of the matter as anticipated by the no-fault statutes.

As such, the complaint in the matter of Custom Orthotics, LTD., as assignee of Cesare Iori v Government Empls. Ins. Co. is dismissed as premature.

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 (Kathryn E. Freed, J.), entered April 4, 2007, deemed from a judgment of the same court entered June 20, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 4, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $578.90.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

Since plaintiff’s motion for summary judgment was supported by an affidavit of an employee of a third-party billing company which failed to comply with CPLR 4518, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists, 2007], affd 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., ___ Misc 3d ___, 2009 NY Slip Op 29155 [App Term, 2d, 11th & 13th Jud Dists 2009]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 24, 2009

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 July 10, 2007. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking summary judgment and sanctions.

Order modified by providing that defendant’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking summary judgment and sanctions.

The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with Real Property Law § 299-a and, thus, the affidavits did not comply with CPLR 2309 (c) (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Since this defect was duly objected to by plaintiff in the Civil Court, defendant failed to introduce competent evidence in admissible form establishing its entitlement to summary judgment (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s motion for summary judgment should have been denied (id.).

Contrary to plaintiff’s contention, plaintiff’s cross motion for summary judgment was properly denied. Plaintiff failed to establish that its billing records constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d [*2]& 11th Jud Dists 2006]). Plaintiff’s remaining contentions lack merit.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 24, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated May 17, 2007, which denied its motion to dismiss plaintiff’s action as time barred.

Per Curiam.

Order (Ben R. Barbato, J.), dated May 17, 2007, affirmed, without costs.

Assuming, without deciding, that defendant qualifies as a self-insurer, plaintiff’s action for first party no-fault benefits is governed by a six-year statute of limitations (see Richard Denise, MD, P.C. v New York City Trans. Auth., appeal numbered 07-308, decided herewith), and was thus timely commenced.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 22, 2009

—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Jason Tenenbaum of counsel), for appellants.

Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.

In an action to recover damages for slander per se, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated November 19, 2008, as denied that branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.

The plaintiff alleged in the complaint that the defendants committed slander per se when they reported to the police that the plaintiff had filed a fraudulent claim with them for no-fault medical benefits for his son. However, the complaint failed to comply with CPLR 3016 (a), which requires that a complaint sounding in defamation “set forth ‘the particular words complained of’ ” (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497 [2004], quoting CPLR 3016 [a]; see Fusco v Fusco, 36 AD3d 589 [2007]). Compliance with CPLR 3016 (a) is strictly enforced (see Abe’s Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690 [2007]). Accordingly, that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action should have been granted. Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ., concur.

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 October 6, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 6, 2008, granted defendant leave to amend the answer to include the defense of fraudulent incorporation and directed plaintiff to produce its owner, Valentina Anikeyeva, for a deposition within 60 days of the order. The order also stated that plaintiff’s failure to produce its owner for the deposition would result in dismissal. Plaintiff appeals from the order entered October 6, 2008.

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff’s failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action (see Matter of Aho, 39 NY2d 241, 248 [1976]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009

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 (Lila Gold, J.), entered January 10, 2008. The order denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion for a protective order.

Order reversed without costs, plaintiff’s cross motion for a protective order denied and defendant’s motion to dismiss the complaint granted to the extent of directing plaintiff to produce its owner, Perumunda K. Sharma, for a deposition within
60 days of the date of the order entered hereon, or on such other date to which the parties shall agree.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiff’s inadequate response to defendant’s discovery demands and plaintiff’s failure to produce its owner, Perumunda K. Sharma (Sharma), for a deposition. Plaintiff opposed the motion and cross-moved for a protective order. The Civil Court denied defendant’s motion, finding that defendant had failed to submit sufficient factual evidence to establish its entitlement to an order compelling the deposition of Sharma, and granted plaintiff’s cross motion for a protective order. This appeal by defendant ensued.

The record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Consequently, defendant is entitled to a deposition of Sharma, plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire and Casualty Company, 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s cross motion for a
protective order is denied and defendant’s motion to dismiss the complaint pursuant to CPLR [*2]3126 is granted to the extent of directing plaintiff to produce its owner, Sharma, for an examination before trial.
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009

[*1]

Supreme Court, Appellate Term, Second Department, July 20, 2009

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**25 Misc 3d at 40} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued at trial that there was no coverage for plaintiff’s assignor’s alleged injuries because the injuries were not sustained in a covered accident. Following the nonjury trial, the Civil Court dismissed the complaint, finding that defendant had sustained its burden of proving lack of coverage by a preponderance of the evidence. On appeal, plaintiff contends that defendant had to prove, by clear and convincing evidence, rather than by a mere preponderance of the evidence, that the alleged injuries were the result of an insurance fraud scheme. Plaintiff further argues that even if the Civil Court correctly determined that defendant’s burden could be satisfied by defendant proving its defense by a mere preponderance of the evidence, the evidence presented by defendant was insufficient to satisfy this burden.

In its decision, the Civil Court noted that, while an insurer may put forth evidence of a fraudulent scheme in order to prove that a collision was not an accident, the insurer need not prove fraud (see Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005]). As stated in the court’s decision,

“courts commonly invoke the term ‘fraud’ when discussing the defense of lack of coverage; this may be because so many cases involving allegedly noncovered incidents center on accidents purportedly staged for the purpose of generating fraudulent insurance claims . . . Perhaps the seminal embodiment of this formulation is the Second Department’s pronouncement [in State Farm Mut. Auto. Ins. Co. v Laguerre (305 AD2d 490, 491 [2003])] that ‘[a] deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 334, 339 [2006]).

However, explained the Civil Court, “it does not matter whether the accident was staged in furtherance of an insurance fraud scheme or was deliberately caused under some other [*2]circumstances” (id. at 335). Rather, the court need only determine “whether the incident was unintentional (i.e., a true accident) or whether at least one driver intended to make contact (i.e., a deliberate event)” (id. at 340). This is because “[i]f the collision{**25 Misc 3d at 41} was an intentional occurrence, then it is outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (id. at 341). We agree with the Civil Court’s reasoning regarding this issue.

In Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277, 284 [2007], affd 10 NY3d 556 [2008]), the Appellate Division explained that “[w]hat excuses the insurer’s compliance with the 30-day rule in a staged-accident case is not the egregiousness of the fraud; rather, it is the absence of coverage for something that is not an ‘accident.’ ” As noted by the Appellate Division, “[t]he rationale for such [a] holding[ ] is that a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an ‘accident’ covered by the subject insurance policy” (id. at 283). Thus, in the case at bar, defendant could properly premise its defense upon a lack of coverage and could establish this defense by a preponderance of the evidence; defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter (see Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855 [2008]), by clear and convincing evidence (see Simcuski v Saeli, 44 NY2d 442 [1978]; Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255 [1983]). Upon a review of the record, we agree with the Civil Court’s determination that defendant’s proof, which plaintiff failed to rebut, established by a preponderance of the evidence its defense of lack of coverage (see Praimnath v Torres, 59 AD3d 419 [2009]). Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.

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 (Thomas D. Raffaele, J.), entered April 9, 2008, deemed from a judgment of the same court entered May 29, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 9, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $829.84.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists [*2]2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claims, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]), defendant’s submissions in opposition to plaintiff’s motion for summary judgment and in support of the cross motion for summary judgment were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009