Civil Court of the City of New York, Bronx County

CV-030992-09/BX

For Plaintiff:

Michael C. Rosenberger of

Rapuzzi, Palumbo & Rosenberger, P.C.

For Defendant:

Diana Leahy of McDonnell & Adels, PLLC

Fernando Tapia, J.

In this no-fault action regarding the recurring issue of Examination Under Oath [“EUO”] letters and their presumption of mailing, this Court, after oral arguments and review of the motion papers, hereby GRANTS Defendant’s Pre-Answer Motion to Dismiss Plaintiff’s Complaint.

The above-captioned matter is demonstrative of other no-fault cases that have similar issues because the case at hand involves two topics that other motions seek to resolve: (1) violation of no-fault policy conditions and (2) unanswered verification requests. Those two main problems in turn spawn the ancillary issue regarding sufficient mailing procedures to make timely requests.

I. VIOLATION OF POLICY CONDITIONS

Defendant argues that Plaintiff’s Complaint must be dismissed as a matter of law because Plaintiff violated no-fault policy conditions when it failed to appear for its scheduled EUO. Plaintiff, in turn, claims that Defendant failed to provide a copy of the subject insurance policy in [*2]its moving papers as well as failed to show that the EUO letters were actually sent.

Section I of 11 NYCRR § 65-1.1 states the following with respect to conditions for proof of claim:

“Upon request by the Company, the eligible injured person or that person’s assignee orrepresentative shall:

(a) execute a written proof of claim under oath;

(b) as may reasonably be required to submit to examinations under oath by any person named bythe Company and subscribe the same;

(c) provide authorization that will enable the Company to obtain medical records; and

(d) provide any other pertinent information that may assist the Company in determining the amountdue and payable.”

In the instant case, Plaintiff claims that Defendant unnecessarily cited the aforementioned policy condition because “[t]he central issue here is derived from the terms contained within the written policy agreement between the parties.” See Pl.’s Aff. in Opp. at p. 6. Plaintiff therefore asserts that in order for Defendant to prevail on its motion, the State Farm policy itself should be included as part of the record instead of depending on the no-fault regulations under 11 NYCRR § 65-1.1. To support its argument, Plaintiff discusses Allstate Ins. Co. v. Ganesh, 8 Misc 3d 922 (Sup Ct, Bronx County 2005), a case dealing with a petitioner’s arbitration stay of an uninsured motorist claim.

In Ganesh, the respondent, the injured individual, sought coverage from the offending party’s insurance carrier [State Farm-petitioner]. State Farm disclaimed the coverage on the basis that the collision was not a motor vehicle accident [“MVA”], but instead, was an intentionally staged event, thereby constituting fraud. State Farm therefore disclaimed coverage to the injured party because per its written policy, intentionally caused losses are not covered. Id. at 923.

The Bronx Supreme Court held that State Farm did not validly disclaim coverage because it did not give sufficient admissible evidence that it was a staged event [i.e. offering the written policy as admissible evidence]. According to Hon. Billings, “[b]ecause no party introduced State Farm’s policy in evidence, State Farm never proved, most fundamentally, that the policy . . . excluded intentionally caused losses or losses involving particular conduct or imposed any conditions on anyone relating to a claimed loss.” Id. As such, the petitioner’s arbitration stay was granted and the respondent was allowed to seek coverage under State Farm’s policy.

Here, Plaintiff’s reliance on Ganesh is flawed because unlike Ganesh, this instant action deals with the issue of an EUO “no-show” which is expressly outlined in the no-fault regulations, guiding principles which written policies are based upon. Ganesh, on the other hand, dealt with the issue of coverage with respect to a questionably fraudulent claim that requires dissection of the written policy itself. Ganesh is also distinguishable from the case at bar because the relief sought in Ganesh was for a stay of arbitration of an uninsured motorist claim, as opposed to dismissal of the complaint based on non-compliance to policy conditions. As such, Ganesh fails to support Plaintiff’s claim that Defendant is required to provide the written policy as evidence. [*3]

Revisiting 11 NYCRR ｧ 65-1.1, that section is part of the revised no-fault regulations which took effect on April 5, 2002, and adopted the mandatory Personal Injury Protection [“PIP”] endorsement authorizing EUOs to be incorporated into insurance policies. In other words, compliance to a scheduled EUO is read into the written policy, and the insurer is not required to offer it as evidence to prove its claim.^[FN1] Likewise, in the case at hand, Defendant is not required to include its written policy as part of the record because its defense [of the EUO “no-show”] is found in the Endorsement. Thus, the mandatory Endorsement applies whether or not the written insurance policy actually contains it. Based on the moving papers, the date of accident was on August 27, 2008. According to NY Insurance Law ｧ 3425 (a)(8), “With respect to auto insurance, ‘required policy period’ means a period of one year from the date as of which a covered policy becomes effective after first issuance or voluntary renewal.” Furthermore, under SZ Medical P.C. v. State Farm Mutual Auto Ins. Co., 9 Misc 3d 139(A) (App Term 1st Dept 2005), the date of the written policy’s issuance determines if the Endorsement is applicable, and not the date when the plaintiff submits a claim. Applying the above to the instant action, the subject insurance policy contract could be deemed to have been issued/renewed well after April 5, 2002, given that the date of accident occurred well over six years after the effective Endorsement date. It would therefore be duplicative to submit a copy of the policy because its legislative intent was to read the Endorsement into all policies [post-April 5, 2002].^[FN2] As such, Defendant does not need to submit the policy contract because the insurance contact in effect incorporates the Endorsement that authorizes EUOs under 11 NYCRR ｧ 65-1.1.

Plaintiff in the case at bar is therefore in violation of the policy condition requiring submission of EUOs for verification purposes in order to make a determination of first-party benefits because Plaintiff did not appear at the two scheduled EUOs as required by the Endorsement. Accordingly, Plaintiff failed to submit valid proof of claim. The discussion now turns to the mailing mechanics involved in procuring such verifications.

II. VERIFICATION REQUESTS

A. Defendant’s contentions

According to 11 NYCRR § 65-3.5 (a), once the insurer receives the NF-2 application for benefits, the insurer “[s]hall forward to the parties . . . those prescribed verification forms it will [*4]require prior to payment of the initial claim.”^[FN3]

In this instant matter, the issue before the Court is whether the mailing of a letter via certified mail return receipt requested is entitled to the same presumption of receipt as regular first-class mail in the absence of the signed returned receipt. This Court determines that it is.

Here, Defendant argues that Plaintiff did not appear to the scheduled EUO despite timely notification to Plaintiff.^[FN4] To substantiate its argument, Defendant provided a sworn affidavit from a calendar clerk at the law office who explained that she was personally responsible for scheduling/handling EUOs. See Toyla Hogan Aff. at ¶ 1. Defendant also provided a sworn affidavit from a Claims Representative who attested her personal knowledge of State Farm’s mailing procedures of EUO letters via certified mail.^[FN5] See Alyson Johnson-Shaw Aff. at

¶¶ 3, 7.

Plaintiff counters that Defendant failed to meet its prima facie burden of proving that the two EUO letters were actually mailed because Defendant’s supporting affidavits are not from individuals who personally mailed the EUO letters. See Pl.’s Aff. in Opp. at pp. 6-7. Plaintiff further argues that Defendant’s affidavits “[a]re actually just a string of several irrelevant and/or conclusory assertions.” Id. at p. 10. To support its contentions, Plaintiff relies on Clark v. Columbian Mut. Life Ins. Co., 221 AD2d 227 (1st Dept 1995).

In Clark, the defendant moved for summary judgment on the basis that no triable issues of fact remained with respect to denying the plaintiff’s life insurance proceeds, especially after sending notices to the plaintiff to make payments so that his life insurance policy would remain active. The plaintiff denied receipt of those notices and further argued that the defendant’s deponent who testified on the regular office procedures of mailing the notices failed to show that he was aware of the computer-generated mailing log which listed the names of those receiving such notices. Id. at 228. The Court denied the motion, finding no presumption of receipt by the insured. Id. at 228-29.

Plaintiff’s reliance on Clark is misplaced because Defendant in the instant case submitted mail lists into evidence, whereas the deponent in Clark was not even aware of the computer-generated mail lists that were used for cross-referencing of the envelopes containing the notices. See Def.’s Reply Aff. at ¶ 6. In addition, the plaintiff in Clark expressly denied receipt of the notice. Here, Plaintiff, in its pleadings, did not explicitly or implicitly deny that it never received the EUO letters. Instead, Plaintiff contends that Defendant failed to show that the EUO letters were actually mailed. This Court therefore turns to the final issue of the presumption [*5]of mailing/receipt.

B. Plaintiff’s contentions

What constitutes “sufficient mailing” under no-fault regulations with respect to raising the presumption that an EUO letter was sent and received via certified mail, return receipt requested?

Here, Plaintiff contends that Defendant has the burden to show that the EUO requests were actually mailed. Based on Defendant’s sworn statements, the EUO letters were sent via certified mail. Thus, the question before the Court is whether the use of certified mail return receipt requested creates a more demanding presumption of mailing and receipt threshold above and beyond that of a letter sent via regular first-class USPS mail. The court finds that it does not.

1. Legal presumption: a basic discussion

This Court finds that Defendant has met its burden because the Court adheres to the longstanding precept that a basic fact [i.e. a mailed letter] raises the existence of a presumed fact [i.e. receipt of the letter] until the presumption is rebutted by admissible evidence.

Under Rule 301 of the Federal Rules of Evidence, a “[p]resumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption . . .” Sufficient evidence can therefore be considered by a fact finder in order to rebut a presumption.^[FN6] The least sufficient approach to a presumption is the “permissible inference” one in which a fact finder may conclude that a presumed fact exists. See Black’s Law Dictionary, 8th ed 2004. A permissible presumption, then, allows someone to infer that a presumed fact does exist from a basic one. Applying this to the mailed letter example, it can therefore be presumed that proper mailing occurred and it is more likely than not that the letter was received.^[FN7]

Does the presumption of receipt by regular mail apply to items of sent certified mail?

2. Rebutting the presumption

Defendant established prima facie proof that it mailed requests for additional verification of the claim by providing sworn affidavits from two State Farm office employees as well as an employee from the office of Defendant’s lawyers, all who have personal knowledge of mailroom procedures of EUO letters. See Def.’s Reply Aff. at ¶¶ 10-11.

More importantly, Defendant submitted its mail list which is not only additional prima facie proof of mailing, but is key to creating the presumption of receipt.^[FN8] The very function of [*6]“return receipt” is to provide proof of delivery, as guaranteed by the U.S. Postal System.^[FN9]

Here, Plaintiff relies on State of New York v. International Fidelity Ins. Co.,

181 Misc 2d 595 (Sup Ct, Albany County 1999) to support its contention that Defendant failed to meet its prima facie burden to prove actual mailing of the EUO letters. In Int’l Fidelity —a non-no-fault case— the movant-plaintiff-NYS sought to prove that it never received the defendant’s cancellation notices about the terminated bonds which were sent via certified mail. The cross-movant-defendant-IFIC argued that it was entitled to summary judgment because NYS could not rebut the presumption of receipt of the cancellation notices. Id. at 599.

The Albany County Court held, inter alia, that routine office practices cannot create a presumption of receipt of letters sent via certified mail. Id. As the Court stated, “To create a presumption of receipt, IFIC has the burden of describing a standard office procedure used to ensure that items are properly mailed, or provide proof of the actual mailing.” Id.

Plaintiff’s reliance on Int’l Fidelity is misplaced because State Farm submitted both sworn affidavits from a claims representative with personal knowledge about mailroom procedures and proof of actual mailing to complement those affidavits, as previously mentioned in II.A. of this decision. See also Hernandez, supra. Furthermore, State Farm retained its mail lists, unlike the plaintiff [NYS] in Int’l Fidelity, who destroyed its mail logs. See Int’l Fidelity, 181 Misc 2d 595 at 598-99.

Also, in the case at hand, even if Ms. Johnson-Shaw, the State Farm Claims Representative, did not attest that she was personally responsible for preparing the EUO letters and mailing them via certified mail, return receipt, the fact that State Farm retained its mail lists serves as its safety net, thereby allowing it to create the presumption of receipt because those mail lists represent actual proof of mailing. Defendant should therefore not be punished for taking advantage of various mailing options which aim to ensure delivery from both the sender’s and recipient’s ends.

Mailing procedures’ technological developments, today, ensure that items are mailed and received so that presumptions can be eliminated. In fact, the USPS has the capacity to reproduce the image of the green return receipt card as a PDF attachment when certified mail is procured via the internet, or else when the sender did not receive the green card back and instead goes to the USPS to follow up on the status of the card. See FN. 9.

As footnoted earlier, the regulation is not specific about the means in which to send substantially equivalent written notices to the required parties; it merely instructs the insurer to “forward” them. See NYCRR § 65-3.5 (a). In fact, it may very well have been the legislative intent of the NY Insurance Department to be vague in order to avoid enforcement of a particular form of mailing in the event it becomes outdated, which would breed any problems regarding receipt. Until the no-fault regulations streamline its mailing requirement, it is presumed that a properly addressed letter that was mailed was duly delivered to the intended individual when using any method of mailing that the USPS offers, however basic or sophisticated that form of mailing is.

III. CONCLUSION [*7]

Satisfying no-fault policy conditions does not have to be compromised at the expense of challenging mailing procedures because proof of mailing of verification letters via regular USPS is enough to create a presumption of receipt. In addition, use of certified mail does not create a more demanding presumption of mailing and receipt beyond that of a letter that was properly mailed. The regulations make no distinction between sending a letter via regular mail or via certified mail.

WHEREFORE Defendant’s Pre-Answer Motion to Dismiss Plaintiff’s Complaint is hereby GRANTED.

This constitutes the decision and order of this Court.

Dated: July 2, 2009____________________________________

Bronx, NYHon. Fernando Tapia, J.C.C.

Footnotes

Footnote 1: See Dana Woolfson LMT, a/a/o Tania Rega v. GEICO, 20 Misc 3d 948 (Civ Ct, NY County 2008) (holding that an insurer does not need to produce the insurance policy at trial to show that the contract contained the Endorsement).

Footnote 2: See Eagle Chiropractic, P.C. a/a/o Annette Monk et. al. v. Chubb Indemnity Ins. Co., 19 Misc 3d 129(A), 2008 WL 712036 (NY Sup App Term 9th & 10th Jud Dists 2008) (stating that the Endorsement was required to be included in auto insurance policies issued or renewed after April 5, 2002).

Footnote 3: The regulation uses “forward” to describe the manner in which notification is to be effected. The only kink is determining what constitutes sufficient “notice” because the regulation does not specify the mailing procedure by which to notify the injured party.

Footnote 4: The EUO was requested with respect to the medical bill of $67.40 which was submitted after other bills were disclaimed. See Def.’s Aff. at ¶ 11. The sought-after EUO is for Theresa M. Hastava, D.C., the individual in question for being fraudulently involved with the healthcare practice. See Claudia Fulco Aff. at ¶ 19.

Footnote 5: Per 11 NYCRR ¶ 65-3.6 (b), timely verification requests are made either via phone calls or by mail. Defendant sent the first EUO letter via certified mail on or about October 29, 2008, with reference numbers 102808JK35 and 102808JK36. The second letter was sent on or about December 1, 2008, with reference numbers 120108JK24 and 120108JK25. See Def.’s Reply Aff. at ¶¶ 10-11.

Footnote 6: As per Notes of Committee on the Judiciary, House Report No. 93-650.

Footnote 7: See Nassau Ins. Co. v. Murray, 46 NY2d 828, 829 (NY 1978) where the 1st department held that “It is settled law that a properly addressed and stamped envelope placed in a U.S. mailbox is presumed to have been received by the addressee.”

Footnote 8: See Hernandez v. Merchants Mut. Ins. Co., 14 Misc 3d 1215(A) (Sup Ct, Bronx County 2006), where movant-defendant-insurer sought summary judgment to dismiss the plaintiff’s complaint, arguing it timely disclaimed coverage via written notice and quoting Residential Holding Corp. v. Scottsdale Ins., 286 A.D2d 679 (NYAD 2d Dept 2001) (where proof of actual mailing or proof of a standard office practice/procedure designed to ensure that items are properly addressed and mailed).

Footnote 9: See , accessed June 22, 2009.

—[*1] Brown & Kelly, LLP, Buffalo (H. Ward Hamlin, Jr., of counsel), for respondent-appellant.

Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (David H. Elibol of counsel), for claimant-respondent.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered November 20, 2008 in a proceeding pursuant to CPLR article 75. The order granted claimant’s motion and vacated an arbitration award.

It is hereby ordered that the order so appealed from is reversed on the law without costs, the motion is denied, and the arbitration award is confirmed.

Memorandum: Claimant was allegedly injured in an automobile accident and, following a hearing based on the denial by respondent, her insurer, of her request for no-fault benefits, the arbitrator awarded claimant the sum of $4,354.56. Claimant also sought supplementary uninsured motorists (SUM) benefits and, following a second hearing before a different arbitrator, the arbitrator denied her request for such benefits on the ground that her injuries were not caused by the accident. Claimant moved pursuant to CPLR article 75 to vacate or modify the SUM arbitration award contending, inter alia, that respondent was collaterally estopped from relitigating the issue of causation with respect to her injuries. Respondent, on the other hand, sought confirmation of the SUM arbitrator’s award. We agree with respondent that Supreme Court erred in granting claimant’s motion. The fact that a prior arbitration award is inconsistent with a subsequent award is not an enumerated ground in either subdivision (b) or (c) of CPLR 7511 for vacating or modifying the subsequent award (see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]). As the court properly recognized, “[i]t was within the [SUM] arbitrator’s authority to determine the preclusive effect of the prior arbitration on the instant arbitration” (Matter of Progressive N. Ins. Co. v Sentry Ins. A Mut. Co., 51 AD3d 800, 801 [2008]). The court erred in noting, however, that it was unable to determine whether the SUM arbitrator even considered claimant’s contention with respect to collateral estoppel. Arbitrators are not required to provide reasons for their decisions (see Matter of Solow Bldg. Co. v Morgan Guar. Trust Co. of N.Y., 6 AD3d 356, 356-357 [2004], lv denied 3 NY3d 605 [2004], cert denied 543 US 1148 [2005]; Matter of Guetta [Raxon Fabrics Corp.], 123 AD2d 40, 41 [1987]), and thus the SUM arbitrator was not required to state that he had considered that contention. [*2]

All concur except Peradotto and Gorski, JJ., who dissent and vote to affirm in the following memorandum.

Peradotto and Gorski, JJ. (dissenting). We respectfully dissent and would affirm. Although collateral estoppel “is not a basis on which [Supreme C]ourt may, under CPLR 7511, vacate an arbitration award” (Matter of Globus Coffee, LLC v SJN, Inc., 47 AD3d 713, 714 [2008]; see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]), vacatur is permitted where the award ” ‘violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” (Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d 1439, 1439 [2007], quoting Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; see generally CPLR 7511 [b] [1] [iii]). In our view, the arbitrator who issued the award with respect to supplementary uninsured motorists (SUM) benefits exceeded his power by disregarding the preclusive effect of a prior arbitration award and instead issuing a different determination with respect to causation, involving the same parties and based upon the same facts (see Matter of American Honda Motor Co. v Dennis, 259 AD2d 613 [1999]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420, 422 [1998]).

We agree with the majority that it generally is within the arbitrator’s discretion to determine the preclusive effect of a prior arbitration award on the instant arbitration (see City School Dist. of City of Tonawanda, 63 NY2d at 848). In a number of the cases setting forth that general proposition, however, there are factual issues whether the prior award should be given preclusive effect, either because the parties are not identical (see e.g. id., 63 NY2d at 847-848; Board of Educ. of Patchogue-Medford Union Free School Dist. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813 [1979]), or it is not clear whether the disputed issue was resolved in the prior proceeding (see e.g. Globus Coffee, LLC, 47 AD3d at 714; Matter of Town of Newburgh v Civil Serv. Empls. Assn., 272 AD2d 405 [2000]; Matter of Medina Power Co. [Small Power Producers], 241 AD2d 915 [1997]). Here, there are no such factual issues. The SUM arbitrator was thus barred from relitigating the issue of causation between the identical parties, inasmuch as it was ” ‘actually contested and therefore determined by the [prior] award’ ” (Medina Power Co., 241 AD2d 915 [1997]).

Further, we note that “strong public policy considerations favor finality in the resolution of disputes of all kinds to assure that parties will not be vexed by further litigation” (Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39, 40 [2003]), and that “[t]he object of arbitration is to achieve a final disposition of differences between parties in an easier, more expeditious and less expensive manner” (Matter of Maye [Bluestein], 40 NY2d 113, 117-118 [1976]). Just as a court may not redetermine an issue conclusively decided in a prior arbitration proceeding between the same parties (see Clemens v Apple, 65 NY2d 746, 748-749 [1985]), despite having the same discretion as an arbitrator with respect to collateral estoppel determinations (see Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504 [1976]), an arbitrator is similarly precluded from redetermining an issue previously settled between the parties pursuant to an arbitration award (see American Honda Motor Co., 259 AD2d 613 [1999]). To conclude otherwise would “defeat[ ] . . . two of arbitration’s primary virtues, speed and finality” (Matter of Weinrott [Carp], 32 NY2d 190, 198 [1973]), and would instead encourage parties to seek that finality by way of the court system. Present—Smith, J.P., Centra, Peradotto, Green and Gorski, JJ.

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 (Mitchell J. Danziger, J.), entered February 9, 2007, which granted plaintiff’s motion for summary judgment.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered February 9, 2007, affirmed, without costs.

In this action to recover first party no-fault benefits, defendant’s submission in support of its staged accident defense was insufficient to establish a “founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 2009 NY Slip Op 50493[U] [2009]). To the extent that defendant purports to rely upon a policy exclusion, any such defense is precluded in view of defendant’s failure to timely deny the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009

[*1]

Civil Court of the City of New York, Richmond County, June 30, 2009

APPEARANCES OF COUNSEL

Barry & Associates, L.L.C., Plainview, for defendant.[*2] Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**25 Misc 3d at 244} OPINION OF THE COURT

Katherine A. Levine, J.

{**25 Misc 3d at 245}This case calls the court to reconcile the seeming anomaly between precedent and the insurance regulations as to what repercussions attach to an insurance carrier’s failure to adhere to the time limits for requesting follow-up verification in no-fault insurance cases. Since the regulations only address the repercussion that attaches to an insurer’s late submission of an additional verification request,^[FN1] and the tenets of statutory construction mandate that different parts of one statute are to be construed together, this court concludes that an insurance carrier should not be subject to greater penalties for submitting a late follow-up verification request than for submitting a late additional verification request.

Plaintiff Pine Hollow Medical, P.C., a medical service provider, brings this action pursuant to Insurance Law § 5106 (a) to recover $699.34 for services it provided to its assignor Jonathan Aurelien, for injuries he allegedly sustained in an automobile accident. Defendant Global Liberty Insurance moved for summary judgment on the grounds that plaintiff’s lawsuit was premature since plaintiff failed to comply with defendant’s verification requests. Plaintiff does not dispute defendant’s assertion that it never provided the requested information, but asserts that defendant’s follow-up verification request was late because it was made on the 11th day after 30 days had already transpired since defendant’s first request for verification, in violation of 11 NYCRR 65-3.6 (b).

Aurelien was allegedly injured in an automobile accident and received medical treatment at Pine Hollow on March 23, 2006. Global sent a verification request to plaintiff’s attorney for a [*3]letter of medical necessity from the referring physician on April 6, 2006. Having received no response, defendant mailed a second verification request dated May 17, 2006, requesting the same letter of medical necessity. It appears that defendant was thus one day late in requesting the follow-up verification.

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].) An insurer may toll the 30-day period by properly{**25 Misc 3d at 246} requesting additional verification^[FN2] within 15 days from the receipt of the no-fault insurance claim forms (NF-3 or claim form). (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004]; 11 NYCRR 65-3.5 [b].^[FN3]) If the “requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b]).^[FN4] If the insurer does not receive the verification request after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]). The insurer must pay or deny the claim within 30 days after it receives verification of all relevant information it requested pursuant to its original request for additional information (11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1];^[FN5] Westchester County Med. Ctr. at 554).

In Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431, 432 [2d Dept 1996]) the court found that the follow-up requirements for verification requests, as contained in 11 NYCRR 65.15 (e) (2) (the predecessor to 11 NYCRR 65-3.6 [b]), must be “strictly[*4] construed” so that “when an insurance company has not received ‘verification’ within 30 days after requesting it, [the insurer] must, within the ensuing 10 days, ‘follow up’ with a second request, documenting the second request in the file and notifying the applicant or the applicant’s attorney.” In Presbyterian (supra) the insurer, after not receiving{**25 Misc 3d at 247} a response to its request for additional verification, failed to make any follow-up request and merely waited three months until it received the requested records after which it issued a denial. The Second Department found that the 30-day period within which the carrier should have paid or denied the claim had run ” ‘even before verification [was] obtained’, due to the carrier’s ‘lack of diligence in obtaining the verification’ ” (233 AD2d at 433, quoting Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 154 [2d Dept 1986]).

There have been divergent opinions on whether the defendant insurance company must wait until 30 days have expired before sending out the follow-up verification request. In Psych. & Massage Therapy Assoc., PLLC (5 Misc 3d at 724-725), the court found that the regulations do not mandate that the insurer wait 30 days before sending a follow-up request since the time frame of 30 days was a limit to the amount of time an insurer may wait before sending a follow-up request. This expeditious handling of the verification follow up was consistent with the case law and the goals of the No-Fault Law.^[FN6] In Park Slope Med. & Surgical Supply, Inc. v Country-Wide Ins. Co. (19 Misc 3d 1138[A], 2008 NY Slip Op 51063[U] [Civ Ct, Richmond County 2008]), this court adopted the reasoning of Psych. & Massage Therapy Assoc. (supra) and held that defendant is allowed to send a follow-up verification request on the 30th day after the original request for verification.

Based upon the aforementioned precedent, it would appear that since defendant was one day outside the 10-day window period in which it had to mail its follow-up verification request, defendant could not take advantage of the tolling period and hence could not argue that the instant lawsuit was premature. However, unlike the arguments presented in the aforementioned cases, defendant here raises the somewhat novel argument that even if its follow-up verification request was untimely, “such untimeliness is not fatal but would merely reduce the number of days it has to either pay or deny the claim.” Specifically, defendant argues that since it was only one day late in mailing its{**25 Misc 3d at 248} follow-up verification request, the 30-day time period it had to pay or deny the claim would still begin to run after it received all of the requested verification but would be reduced by one day to 29 days. Defendant does not cite any authority for this proposition. [*5]

11 NYCRR 65-3.8 (j) states that “[f]or the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue . . . , with the exception of section 65-3.6 of this subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.” Section 65-3.6 (b), as set forth above, governs the follow-up requirements for verification requests if any verification has not been supplied to the insurer pursuant to the additional request.

There appears to be no higher court analysis of what the phrase “with the exception of section 65-3.6” means within the context of ascertaining what repercussions, if any, attach to an insurer’s late submission of a follow-up verification. However, in Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553 [1999]), the Second Department found that under the old regulations, a follow-up letter that was sent beyond the 10-day window period was timely and that the insured was entitled to the tolling of the 30 days as contained in 11 NYCRR 65.15 (g). Since the plaintiff never responded to the follow-up verification letter, the 30-day period in which defendant had to pay or deny the claim never commenced and defendant’s denial of the claim was not untimely.

There, the defendant received the claim on April 28, 1997, and made a timely demand for additional verification on May 1. Having not received verification within 30 days, the defendant then made a “timely demand” for follow-up verification on June 13. (262 AD2d at 555.) The defendant thereupon denied the claim on June 19. In its brief before the Second Department, the defendant insurer argued that even assuming June 13^[FN7] was the date it mailed the follow-up request, its denial was still timely on the grounds that the regulations (11 NYCRR 65.15 [g] [10]) only addressed the repercussions if the initial{**25 Misc 3d at 249} (additional) verification request was not timely sent, and then did not require preclusion of the defense but only a reduction of the 30-day period in which the insurer had to pay or deny the claim, after receiving the verification material, by the amount of the delay. Without commenting on defendant’s reasoning, the Second Department found that defendant had submitted a timely follow-up request.

Subsequently, in Liberty Queens Med. v Tri-State Consumer Ins. (188 Misc 2d 835 [Nassau Dist Ct 2001]), the court dealt directly with the apparent inconsistency between the Appellate Division precedent that the verification requirements must be strictly complied with [*6]and the regulatory language which provided for an extension of time in which a defendant insurer had to pay or deny a claim based upon outstanding verification pursuant to 11 NYCRR 65.15 (d) (2) and (g) (1) (under the new regulations—11 NYCRR 65-3.6 [b] and 65-3.8 [j]). There, the defendant insurer made the additional verification request 11 days after receiving the claim and hence was one day late in making the request pursuant to 11 NYCRR 65.15 (d) (2).

The plaintiff argued that because the request for additional verification was untimely, the defendant insurer waived its right to extend the 30-day period and therefore was required to make a determination on the claim within 30 days of the initial submission, citing Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431 [1996]). The Liberty court first distinguished the matter before it from Presbyterian where the court was not required by the facts before it to focus on the “specific issue presented here,” i.e., the tolling provision of section 65.15 (g) (10). (188 Misc 2d at 839.) Therefore, the “broad general language” utilized by the Presbyterian court should not be construed as determinative of how the court should rule upon a one-day delay in complying with the specific regulation before it. (Id.)

Addressing the insured’s “one-day deviation” from the requirement that it send its additional verification request within 10 days, the court found that the purpose of the No-Fault Law—”avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims”—was sufficiently served by “truncating the presumptive 30-day period which the insurer itself would otherwise have to eventually review the proof submitted” as set forth in 11 NYCRR 65.15 (g) (10). (Liberty at 840.) To impose the “draconian result” requested by plaintiff for a “one-day deviation” from the promulgated standards{**25 Misc 3d at 250} would deprive the insurer entirely of its right to obtain and review the needed proof and would “contravene rather than implement the statutory intent.” (Id.)

Based upon the two aforementioned precedents, it is clear that defendant should not be deprived entirely of the opportunity to review and obtain the needed proof by dint of its one-day tardiness in submitting its follow-up request. 11 NYCRR 65-3.8 (j) only addresses the repercussions of an insurer’s failure to request the additional verification within the set time lines, since it expressly excludes section 65-3.6, which discusses follow-up verification requests, and then sets forth that any deviation from the time frame shall reduce the 30 calendar days allowed in which to pay or deny the claim. As such, the regulations do not even contain a punitive provision for an insurer who does not make a follow-up verification request within the 10-day period.

“A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent” (McKinney’s Cons Laws of NY, Book 1, Statutes § 97; Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 691 [2006]) and construed so as to harmonize [*7]with one another (Anglin v Anglin, 80 NY2d 553, 558 [1992]). In the interpretative context, a court “must read the entire law and accord respect to the interlocking and interrelated features of all its parts.” (Anglin at 558.) Furthermore, even apparently conflicting provisions of a statute must be reconciled in a manner most consistent with the overall legislative intent. (Statutes § 98; Schulman v Group Health Inc., 39 AD3d 223 [1st Dept 2007].) Finally, the common mandate of statutory construction is to assume that the Legislature “did not intend a patently absurd result.” (Covington v Walker, 307 AD2d 908, 909 [2d Dept 2003]; see Statutes § 145; In re Adamo, 619 F2d 216, 219 [2d Cir 1980].)

It would be patently absurd and contravene the meaning of 11 NYCRR 65-3.8 (j) to impose a more draconian punishment on an insurer who is one day late in requesting follow-up verification than on an insurer who is one day late in requesting additional verification. Since in the latter situation, the only repercussion to the insurer’s tardiness is the diminution in the time it has to issue a denial or pay the claim, it begs all credulity to impose the more drastic remedy of precluding the insurer from even issuing a denial because of its tardiness in requesting follow-up verification. If anything, the aforementioned regulation{**25 Misc 3d at 251} imposes no repercussion upon the insurer who is tardy in requesting follow up.

Since defendant has yet to receive any response to its verification requests, its 30-day period in which to deny or pay the claim has not yet commenced and the instant action is premature. In light of the above, it is not necessary for this court to determine whether the defendant’s time to deny or pay the claim, once it does receive the requested information, is diminished by one day.

Defendant’s motion for summary judgment is granted and the case is dismissed.

Footnotes

Footnote 1: As will be explained below, an additional verification request precedes a follow-up verification request under the no-fault insurance regulations.

Footnote 2: The additional verification request is to be distinguished from the initial verification forms (including the claim form or NF-3) which must be forwarded by the insurer to the parties required to complete them within 10 days of receipt of the completed application for no-fault benefits (NF-2).

Footnote 3: This opinion will also cite to the analogous provisions under the old no-fault regulations (old regulations) which were effective through December 31, 2002, since many of the operative cases were brought under the old regulations. The analogous provision to section 65-3.5 (b) under the old regulations is 11 NYCRR 65.15 (d) (1), which provided that an insurer shall request additional verification within 10 days of receiving the prescribed verification forms.

Footnote 4: The analogous provision under the old regulations is 11 NYCRR 65.15 (e) (2).

Footnote 5: The analogous provision under the old regulations is 11 NYCRR 65.15 (g) (1).

Footnote 6: However, in Sea Side Med., P.C. v State Farm Mut. Auto Ins. Co. (12 Misc 3d 1127 [Civ Ct, Richmond County 2006]), Judge Sweeney found that the clear language of 11 NYCRR 65-3.6 (b) required the insurer to “follow up with the plaintiff for the verification at least once in the 10-day period specified therein” (id. at 1131). By sending the follow-up verification request only 28 days after the first verification request had been mailed, defendant failed to mail the follow-up request within the 10 days and “the toll occasioned by defendant’s initial requests for verification dissipated ab initio” (id.).

Footnote 7: (See reply brief for defendant-appellant in Westchester, available at 1999 WL 34593237 [briefs and other related documents].) In their briefs, the parties differed as to when the insurer sent the follow-up verification request; the plaintiff contended that it was sent on June 13 while the defendant insurer argued it was sent on June 3. The Appellate Division adopted June 13 as the date that the follow-up verification request was sent and this court will presume that the Appellate Division, after considering all the evidence, properly ascertained the operative date.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), dated June 30, 2008, deemed from an amended order entered September 24, 2008 (see CPLR 5520 [c]). The amended order denied plaintiffs’ motion for summary judgment.

Amended order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion. The District Court denied plaintiffs’ motion on the ground that the affidavit of plaintiffs’ billing manager was insufficient to satisfy the business records exception to the hearsay rule. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied.

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

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur. [*2]
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 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.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment
as a matter of law. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s billing manager failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered July 2, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs’ assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]

With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated May 16, 2008. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion which sought to dismiss the complaint due to plaintiff’s failure to comply with defendant’s discovery demands, or, in the alternative, to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands.

Order, insofar as appealed from, modified by providing that the branch of defendant’s motion seeking to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands is granted to the extent of compelling plaintiff to produce the documents and information demanded in items 5, 6, 7 and 9 of defendant’s notice for discovery and inspection and to serve answers providing the information sought in questions 31, 32, 37, 38, 45 and 46 of defendant’s demand for verified written interrogatories, within 60 days of the order entered hereon, and by further compelling plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3126, based upon plaintiff’s failure to comply with discovery, or, in the alternative, pursuant to CPLR 3124, to compel plaintiff to respond to its demand for written interrogatories, to produce the documents requested in its demand for discovery and inspection, and to compel plaintiff to produce its owner, Valentina Anikeyeva, to appear for an examination before trial (EBT). Defendant acknowledged receipt of plaintiff’s [*2]responses to its discovery demands, which plaintiff had served more than 18 months after service of defendant’s discovery demands, but claimed that plaintiff’s answers were either insufficient or unresponsive. Defendant specifically alleged that plaintiff had failed to give meaningful responses to questions 31, 32, 36, 37, 38, 45 and 46 of its demand for verified written interrogatories, and to items 5, 6, 7, 8 and 9 of its demand for discovery and inspection. Defendant also asserted that it was entitled to an EBT of plaintiff’s owner, Valentina Anikeyeva. Plaintiff opposed the motion, arguing that its responses were proper, and that defendant had failed to demonstrate that plaintiff’s owner’s EBT would lead to any relevant information that could not be adequately addressed in plaintiff’s responses to the interrogatories. The District Court denied so much of defendant’s motion as sought to dismiss the complaint based on plaintiff’s failure to comply with defendant’s discovery demands, and, to the extent that defendant raised specific objections to plaintiff’s responses to its discovery demands, the District Court denied the branch of defendant’s motion which sought, in the alternative, to compel such responses. The District Court also denied the branch of defendant’s motion seeking to compel Ms. Anikeyeva to appear for an EBT on the ground that defendant failed to demonstrate any genuine need for same. The instant appeal by defendant ensued.

Plaintiff was required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiff failed to timely object to defendant’s demand for verified written interrogatories. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co, 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

To the extent defendant’s discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not timely object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). However, defendant seeks discovery, inter alia, to support its defense that plaintiff is 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]), a defense which is not precluded. As a result, discovery of, among other things, the contract between plaintiff and its management company, if any, and the agreement pursuant to which plaintiff occupied its premises, is not palpably improper, and plaintiff did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 5, 6 and 7 of its notice for discovery and inspection and to answers providing the information sought in questions 31, 32, 38, 45 and 46 of its demand for verified written interrogatories (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]). [*3]

In addition, we find that special circumstances exist which warrant the disclosure of plaintiff’s corporate income tax returns (see CPLR 3101 [a]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also One Beacon Ins. Group, LLC, 54 AD3d 738; Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is also entitled to the documents demanded in item number 9 of its notice for discovery and inspection and to the answer sought in question 37 of its demand for verified written interrogatories.

Contrary to the District Court’s conclusion, defendant was not required to show, as a prerequisite to an EBT of Ms. Anikeyeva, that plaintiff’s responses to its demand for written interrogatories were inadequate. “The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them” (Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]). Accordingly, defendant was entitled to conduct such EBT notwithstanding the fact that it had also served plaintiff with other discovery demands (see CPLR 3102; Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]; Great Wall Acupuncture, P.C. v General Ass. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]). Moreover, since defendant is asserting a Mallela defense, it was entitled to such an EBT (see Corona Heights Med. P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52185[U] [App Term, 2d & 11th Jud Dists 2008]; see also Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co, 2 Misc 3d 347, 353 [Civ Ct, Queens County 2003] [“Depositions in certain cases under the no-fault laws, for example, may be helpful in detecting instances of fraud”]).

To the extent that defendant also sought to compel production of the personal federal and state income tax returns of Ms. Anikeyeva, defendant failed to establish its entitlement to such documents since “[i]t is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). As a result, at this juncture, defendant failed to meet its burden of establishing that Valentina Anikeyeva’s personal income tax returns were properly discoverable, particularly where, as here, defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, we modify the order of the District Court to the extent indicated above.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated June 23, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for, inter alia, summary judgment dismissing the complaint on the ground, among others, that defendant did not receive the claim forms upon which plaintiff seeks to recover. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.

A provider establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a 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 [2001]). The affirmation of plaintiff’s “primary doctor and principal shareholder” was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.

Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant’s cross motion (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]). We pass on no other issue.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 9, 2008. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff had failed to make out a prima facie case in that plaintiff had failed to prove the admissibility of the assignment of benefits form and that, in any event, defendant had denied plaintiff’s claim on the ground of lack of medical necessity. The District Court denied plaintiff’s motion for summary judgment, finding that the peer review report demonstrated the existence of a triable issue of fact as to medical necessity. This appeal by plaintiff ensued.

Defendant asserts that the affidavit submitted by plaintiff’s billing manager was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case. We note that, contrary to defendant’s contention, proof of the assignment of benefits form is not an element of plaintiff’s prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [*2][2004]).

In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed (e.g. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dist 2007]).

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009