Supreme Court, Ulster County

05-0420

Appearances:

Basch & Keegan, LLP

Attorneys For Plaintiff

Maureen A. Keegan, Esq., of counsel

307 Clinton Avenue

P.O. Box 4235

Kingston, New York 12402

Jacobson & Schwartz Law Offices

Attorneys for Defendant

Kevin R. Glynn, Esq., of counsel

510 Merrick Road

P.O. Box 46

Rockville Centre, New York 11571

Henry F. Zwack, J.

This is an action brought by plaintiff Brian Gokey (plaintiff) to recover unpaid no-fault insurance benefits from defendants Allstate Insurance Company (Allstate) and Blue Ridge Insurance Company a/k/a General Casualty of Wisconsin (Blue Ridge). The action arises out of an automobile accident that occurred in March 2003. Shortly before this case was to be tried, Allstate settled with plaintiff for fifty thousand dollars ($50,000.00), most of which was applied to outstanding unpaid medical bills.

The case against Blue Ridge was tried before the Court in a single day on October 29, 2008. Three witnesses testified on plaintiff’s behalf: Dr. Robert Roth, plaintiff’s primary care physician, who treated plaintiff for injuries sustained in the accident; plaintiff himself; and Kathy Murphy, a legal secretary at plaintiff’s counsel’s firm who mailed numerous documents relating to plaintiff’s disability to both defendants. Blue Ridge presented no evidence.

In addition to the testimony of the three witnesses, the Court also received a number of documents into evidence on consent of both parties. The Court finds the testimony adduced to be credible and also credits the information contained in the various trial exhibits. Based upon this evidence, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

Plaintiff, currently forty-four (44) years old, had been self-employed at his house painting business since 1995. By the end of 2002 the business was quite successful, employing up to nine or ten people during the busy season and owning a number of vehicles and other pieces of equipment.

Shortly after 1:00 p.m. on March 8, 2003, plaintiff was riding in the passenger seat of a vehicle being driven by a friend. While stopped at an intersection in Kingston, another vehicle collided with the rear of the car in which plaintiff was riding. Plaintiff was propelled sharply forward and felt intense pain in his lower back.

Plaintiff was transported to a nearby hospital. He was examined, prescribed pain medication, and directed to his primary care physician for followup care. Plaintiff complied with these recommendations.

It was ultimately determined that plaintiff had suffered the herniation of two lumbar discs in the accident. His doctors first attempted to treat plaintiff’s intense pain with conservative treatment options such as physical therapy and medication. When these attempts proved to be futile, plaintiff underwent a double spinal fusion operation on several lower vertebrae. Even this operation was ultimately not successful in alleviating plaintiff’s pain. He now has difficulty walking, standing or sitting for prolonged periods. Plaintiff’s sleep is also frequently interrupted by pain.

From the time of the accident, plaintiff has been unable to return to his work. He is unable to perform the demanding physical tasks required of a house painter, and has even found it difficult to visit job sites to supervise other workers. His business having [*2]failed, plaintiff has since relocated to Florida and is unemployed.

In May 2003 plaintiff submitted the two-page “Application for Motor Vehicle No-Faults Benefits” (New York State Form NF-2) to Blue Ridge, the “excess” insurer for no-fault benefits (Allstate being the primary carrier).^[FN1] In that document plaintiff asserted that his average weekly earnings were one thousand dollars ($1,000.00). Following the submission of this claim, both Allstate and Blue Ridge began paying plaintiff’s medical bills and lost wages, which were paid out at three thousand eight hundred dollars ($3,800.00) per month. Regularly and repeatedly, plaintiff forwarded through his counsel’s office copies of notes from his treating physicians verifying that he was not fit to return to work.

In mid-November 2003 payments to plaintiff ceased. The reason given by Blue Ridge at page 1 of its three-page “Denial of Claim Form NF-10,” admitted into evidence as part of Plaintiff’s Exhibit 4, was “per independent medical examination as of 11/17/03.”^[FN2] This litigation ensued.

The Court also finds as a matter of fact that plaintiff was unable to return to work for the entire three-year period encompassed by this lawsuit. Indeed, based upon the testimony adduced at the trial, it appears that plaintiff remains disabled up to the present time.

Finally, the Court finds that plaintiff was entitled to receive three thousand eight [*3]hundred dollars ($3,800.00) per month in lost wages for the period of twenty-eight and one-half months following the cessation of benefit payments by defendants.^[FN3] Thus, the total principal balance of unpaid payments ($3,800.00 times 28.5 months) is one hundred eight thousand three hundred dollars ($108,300.00).

CONCLUSIONS OF LAW

Contrary to the contentions of Blue Ridge, plaintiff has proven that he submitted a claim for lost wages and other benefits available to him under his no-fault coverage. A copy of the official form NF-2, fully executed and signed by plaintiff shortly after the accident, is one of the documents admitted into evidence at trial. Accordingly, this Court concludes that plaintiff did properly submit an acceptable claim form that apprized Blue Ridge of his seeking the no-fault benefits, including lost wages, to which he was entitled.

In addition to the principal balance of one hundred eight thousand three hundred dollars ($108,300.00), plaintiff is entitled to interest. Plaintiff offers authority to suggest that he is entitled to compound interest, while Blue Ridge argues that the interest should not be compounded. Former 11 NYCRR § 65.15(h)(1) did provide for two percent per month in compound interest for unpaid no-fault benefits; this regulation was superseded, however, effective April 5, 2002 (well before the accrual of any part of plaintiff’s claim). Under the new regulatory scheme, 11 NYCRR § 65-3.9(a) provides for “interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month.” This is interpreted by the Court of Appeals as a simple interest calculation (Medical Society of State v Serio, 100 NY2d 854, 871 [2003]).

Blue Ridge argues that any interest cannot be applied before the date on which Allstate settled its claim with plaintiff. This position is without support. The Court of Appeals has held that “benefits are overdue if not paid by the insurer within 30 days after submission of proof of loss” (Id. at 871, citing 11 NYCRR § 65-3.9[a]). Plaintiff submitted his proof of loss, i.e., his form NF-2, well before Blue Ridge ceased making the payments due. Accordingly, plaintiff is entitled to two percent per month interest on each missed payment, calculated from thirty days after it was due until the present time.

Appended to this Decision and Order is a schedule prepared by the Court which details the calculation of interest and principal payments due plaintiff. It contains vertical columns for the date each payment was due, the principal amount of the payment, the interest due on that individual payment, and the subtotal of principal and interest on each payment. Thus, reading horizontally across the first row, one can see that in November 2003 plaintiff was due a payment of one thousand nine hundred dollars ($1,900.00); that two percent per month interest for the sixty-two (62) months between the end of November 2003 and the end of January 2009 on this amount equals two thousand three hundred fifty-six dollars ($2,356.00); and that the total due on this payment in principal [*4]and interest is four thousand two hundred fifty-six dollars ($4,256.00). Similarly, the second row shows a payment of three thousand eight hundred dollars ($3,800.00) due for December of 2003, with sixty-one (61) months of interest added; the third row, another $3,800.00 payment, this for January 2004, with sixty (60) months of interest added, and so on. Based on this computation, the total interest accrued for all missed payments as of the end of January 2009 is one hundred three thousand four hundred thirty-six dollars ($103,436.00). Together with the principal due of one hundred eight thousand three hundred dollars ($108,300.00), plaintiff is owed in toto the sum of two hundred eleven thousand seven hundred thirty-six dollars ($211,736.00).

COUNSEL FEES

Plaintiff is entitled to recover twenty percent (20%) of the total amount of his claim for unpaid no-fault benefits up to a maximum of eight hundred fifty dollars ($850.00) (11 NYCRR § 65-4.6[e]). This is assessed on a per-claim basis (LMK Psychological Services, PC v State Farm Mutual Auto Ins. Co., 46 AD3d 1290 [3d Dept 2008]). Thus, plaintiff is entitled to $850.00 in counsel fees.

Plaintiff’s counsel points out that, under exceptional circumstances, a court may award fees in excess of the statutory maximum. Under the circumstances of this case, however, where the application of statutory interest should act as both a sufficient deterrent against dilatory tactics in futuro and as a substantial gain for this plaintiff, it would be an improvident exercise of the Court’s discretion to award additional counsel fees.

Finally, Blue Ridge argues that the settlement between plaintiff and Allstate was in violation of the priority of payments rules set forth in 11 NYCRR § 65-3.15, as it was applied to certain medical bills that accrued subsequent to the accrual of plaintiff’s right to some of the lost wages payments. Blue Ridge argues that this settlement inures to its disadvantage as the excess carrier, as the primary carrier Allstate may have been liable to make a portion of the lost wages payments now chargeable to Blue Ridge. Inasmuch as the merits of this particular dispute involve the relative rights of Blue Ridge and Allstate, any adjustment that might be due to Blue Ridge cannot be charged to plaintiff. Blue Ridge remains, of course, free to pursue any remedy it may have over against Allstate.

Accordingly, it is

ORDERED, that plaintiff’s counsel shall submit, on notice of settlement, a final Judgment consistent with the terms of this Decision and Order.

Dated:January21, 2009

Troy, New York

________________________________________ [*5]

Henry F. Zwack

Acting Supreme Court Justice

Footnotes

Footnote 1: The position taken by Blue Ridge throughout this case has been that plaintiff had failed to file the appropriate claim form and that therefore Blue Ridge was under no duty to pay on plaintiff’s claim. A careful review of the documents admitted as Plaintiff’s Exhibit 4 in Evidence discloses, however, that not only had plaintiff in fact submitted a fully executed and signed “Form NF-2,” but a copy of that form was faxed from the offices of “General Casualty” (the name by which Blue Ridge is also known, per the caption of this case) in May 2004 to its counsel, who ultimately provided it to plaintiff’s counsel as part of discovery. While counsel for Blue Ridge may be technically correct in his contention that the proper form to have been submitted by a self-employed claimant was a “Form NF-7,” even his post-trial Memorandum of Law (at [unnumbered] p 6) incorrectly asserts, “During the course of this trial Plaintiff offered no evidence at all of any form being submitted to Defendant, whether it be an NF-2 Application for No-Fault benefits or the required NF-7, Verification of Self-Employment Income form.”

Footnote 2: At this juncture, the Court takes judicial notice of prior proceedings related to this case. In the litigation brought by plaintiff against the driver and owner of the vehicle that had struck him, it was determined that plaintiff had failed to submit to an IME on two separate occasions. Accepting his proffered excuses and his stated intent to submit to such an examination as genuine, the Appellate Division, Third Department reversed the Order of Supreme Court (Kavanagh, J.) dismissing the complaint (Gokey v DeCicco, 24 AD3d 860 [2005]). It thus appears that circumstances surrounding plaintiff’s IME, and not the failure to submit paperwork, may lay at the heart of defendants’ decision to discontinue plaintiff’s benefits.

Footnote 3: All but a few hundred dollars of the settlement with Allstate was applied toward outstanding medical bills and nothing was applied toward lost wages.

[*1]

City Court of Buffalo, January 21, 2009

APPEARANCES OF COUNSEL

Mura & Storm, PLLC, Buffalo (Brian C. Clark of counsel), for defendants. O’Brien Boyd, P.C., Williamsville (Daniel K. Morris of counsel), for plaintiffs. [*2]

{**23 Misc 3d at 629} OPINION OF THE COURT

Jeffrey F. Voelkl, J.

I. Background Facts

These seven actions have been combined for the purpose of deciding various motions to dismiss made by the defendants pursuant to CPLR 3211 (a) (8) which involve a common question of law. These actions are all for recovery of money damages. The plaintiffs are health care providers who provided medical care to their various patients. These patients were all insureds of the defendants who had their first-party no-fault claims denied. They then assigned their various claims to the plaintiffs. It should be noted that the defendants provide no-fault insurance coverage throughout New York State, including the City of Buffalo.

The plaintiffs commenced these actions by service of their summonses and complaints on the New York State Superintendent of Insurance at the Albany or New York City offices under the authority of Insurance Law § 1212.

It should be noted that both Albany and New York City are hundreds of miles from the City of Buffalo and separated from Erie County, where the City of Buffalo is located, by dozens of counties.

The question presented to the court is: Does service of a summons and complaint on the Superintendent of Insurance, pursuant to Insurance Law § 1212, in the Albany or New York City offices, allow for the City Court of Buffalo to acquire personal jurisdiction over the defendants based on the limiting language of New York Constitution, article VI, § 1 (c), which states in part that “[t]he legislature may provide that processes, warrants and other mandates . . . of town, village and city courts outside the city of New York may be served and executed in any part of the county in which such courts are located or in any part of any adjoining county” (emphasis added)?

II. Findings of the Court

The court finds that it has subject matter jurisdiction over this matter pursuant to Uniform City Court Act §§ 201, 202 and {**23 Misc 3d at 630}212. The defendants are well-known automobile insurance carriers who have been transacting business in New York State and the City of Buffalo for decades. They have both been plaintiffs in this court for dozens, if not hundreds, of actions. Additionally, all of the plaintiffs maintain and regularly transact business in their offices within the City of Buffalo or in townships adjacent to the City of Buffalo which allows this court to obtain subject matter jurisdiction over these actions pursuant to Uniform City Court Act § 213.

However, the defendants point out that simply having subject matter jurisdiction over the action is not enough in and of itself to confer personal jurisdiction over the parties if they cannot be served in accordance with the restrictions imposed by article VI (§ 1 [c]) of the New York Constitution. (Hyman & Gilbert v Greenstein, 138 AD2d 678, 680 [2d Dept 1988].) [*3]

The defendants point to a decision written by Judge James McLeod of this court in Marita Car Rentals, Inc. v Ishtiaq (11 Misc 3d 506 [Buffalo City Ct 2006]), which held that physical service of process of this court under Vehicle and Traffic Law § 253 on the Secretary of State in his New York City office, or in any office located in a county other than Erie where the City of Buffalo is located, or any of the counties contiguous to Erie County was a clear violation of the constitutional limits of article VI (§ 1 [c]) of the New York Constitution.

However, the court finds the facts of these cases distinguishable from Marita and much more in line with the facts in Pohlers v Exeter Mfg. Co. (293 NY 274 [1944]). In Pohlers the Court of Appeals held that service of process under former General Corporation Law § 217 on the New York State Secretary of State in Albany was valid service on a corporate defendant in a New York City action.

First, the defendant in Pohlers was a foreign corporation which had expressly consented to service beyond the court’s jurisdictional limitations as a condition for doing business in New York State. In Marita there was no such express consent, but only an implied consent based on the legal premise that drivers from other states know that the laws of New York State require that all drivers in the state consent to the New York State Secretary of State to act as their agent for accepting service of process pursuant to Vehicle and Traffic Law § 253. Here, the facts of these cases are much more in line with those in Pohlers than to those in Marita.

Second, in the Pohlers case the statute required that the cause of action must have occurred within the territorial limits of the{**23 Misc 3d at 631} city and that the defendant had a place of business within the territorial boundaries of New York City, which it did. In Marita, one defendant entered into a rental car agreement in a township that was contiguous to the City of Buffalo and the other defendant using the same rental car was involved in a motor vehicle accident in another township which was also contiguous to the City of Buffalo. These were the only actions alleged which would have provided the court with subject matter jurisdiction. Again, the facts of these cases are much more in line with those in Pohlers than to those in Marita.

Additionally, Uniform City Court Act §§ 403 and 404 allow for the court to exercise personal jurisdiction over any nonresident of the county who transacts business within the city as authorized in the Uniform City Court Act or as may be authorized elsewhere by law.

Here, the defendants are both foreign corporations which are licensed to do business in New York State by the New York State Insurance Department. As an expressed condition of doing business in New York State both companies agreed to allow service upon the Superintendent of Insurance to confer personal jurisdiction upon them by a court of competent jurisdiction pursuant to Insurance Law § 1212.

Based on the facts of these cases the court finds that Buffalo City Court is a court of competent jurisdiction for the purposes of Insurance Law § 1212.

This court finds that service on the defendants pursuant to Insurance Law § 1212 is valid service and gives this court personal jurisdiction over the defendants pursuant to the authority of Uniform City Court Act §§ 403 and 404 and the Court of Appeals holding in[*4]Pohlers v Exeter Mfg. Co. (293 NY 274 [1944]).

It should be noted that the court has found no case law which suggests that the Pohlers decision is no longer good law, and Pohlers has in fact been cited by appellate courts well after the 1962 change to the New York Constitution cited by the defendants. (Acciaierie E. Ferriere Lombarde Falck S.p.A. v Pete Sublett & Co., 78 AD2d 834 [1st Dept 1980].)

In fact, our own Fourth Department has stated in a decision specifically citing to the Pohlers decision that a party may by agreement consent to the jurisdiction of a court which would not otherwise have authority over him. Further, public policy does not forbid the appointment of an agent to accept service,{**23 Misc 3d at 632} or an agreement, in advance of litigation, to submit oneself to jurisdiction by subjecting oneself to process. While ordinarily a court can acquire jurisdiction of the person of a defendant only by service of process within the jurisdiction of the court, that rule does not apply where the defendant has agreed in advance to accept some other form of service as sufficient. (Matter of Bauer [Motor Veh. Acc. Indem. Corp.], 31 AD2d 239, 241 [4th Dept 1969].)

It is hereby ordered that the defendants’ motions to dismiss the plaintiffs’ complaints are denied in their entirety.

[*1]

Second Department, January 20, 2009

Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 2007 NY Slip Op 34402(U), affirmed.

APPEARANCES OF COUNSEL

Stern & Montana, LLP, New York City (Richard Montana of counsel), for appellant.

Joseph Henig, P.C., Bellmore, for respondents.

{**61 AD3d at 14} OPINION OF THE COURT

Dillon, J.

We are asked to determine whether the definition of diagnosis and procedure codes adopted by the United States Department of Health and Human Services (hereinafter HHS) as part of its regulatory authority may be a proper subject for judicial notice under CPLR 4511. If so, we must also determine whether the defined diagnostic codes, in and of themselves, permit a finding that a patient’s hospital care and treatment is wholly outside the scope of no-fault automobile coverage. Until now, we are not{**61 AD3d at 15} aware of any appellate court that has addressed the issue of whether the diagnosis and procedure codes key of the United States government can be judicially noticed by courts, so that it may then be used to decipher no-fault billing forms.

I. Relevant Facts

On July 3, 2006, George Hafford was injured in an automobile accident and received treatment at the plaintiff White Plains Hospital Center (hereinafter White Plains Hospital) from [*2]the date of the accident until August 22, 2006. Hafford was insured by the defendant, Allstate Insurance Company (hereinafter Allstate), under an automobile liability insurance policy that contained a no-fault endorsement. White Plains Hospital rendered a bill for its services to Hafford in the total sum of $26,979.83. Hafford assigned to White Plains Hospital the right to seek reimbursement from Allstate for the amount billed.

On November 7, 2006, White Plains Hospital, as assignee of Hafford, mailed to Allstate by certified mail, return receipt requested, NF-5 and UB-92 forms demanding payment of the sum of $26,979.83. The UB-92 form contained code numbers to identify the diagnoses that had been made of Hafford’s conditions and the treatments provided to him in furtherance of the diagnoses. The delivery of the forms to Allstate on November 8, 2006 is not at issue. White Plains Hospital alleges that pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), Allstate’s payment of no-fault benefits became due on December 8, 2006, but Allstate failed to make payment or issue a denial of claim.

This action ensued. Allstate’s answer to the complaint set forth 11 affirmative defenses, including the “fourth” affirmative defense that the injuries for which Hafford received treatment did not arise out of the use or operation of an insured motor vehicle and, as such, are not covered by its policy of insurance.

The plaintiffs moved for summary judgment, submitting, in connection with the third cause of action asserted by White Plains Hospital, documentary evidence to establish the service by White Plains Hospital upon Allstate of the required billing documents for no-fault reimbursement and Allstate’s failure to either pay the claim or issue an appropriate denial. Allstate opposed the motion and, by cross motion, sought summary judgment in its favor dismissing the complaint. With respect to the third cause of action asserted by White Plains Hospital, Allstate{**61 AD3d at 16} argued that it was entitled to summary judgment on the ground that the treatment afforded to Hafford was unrelated to his motor vehicle accident. Specifically, Allstate’s counsel provided the court with the diagnosis and procedure codes key from the official Web site of HHS, Centers for Medicare and Medicaid Services. Allstate requested that the Supreme Court take judicial notice of the codes and their definitions, as public documents. According to the codes key, Hafford’s diagnoses and treatment at White Plains Hospital included rapid heart rate associated with infection, acute and chronic respiratory failure, heart damage caused by alcoholism, convulsions, potassium deficiency, blood poisoning, brain damage caused by lack of oxygen, and expectoration of blood. Allstate’s counsel argued, without a supporting affidavit from a medical expert, that these code-defined conditions could not have been related to the automobile accident or, at least, raised an issue of fact as to whether the conditions arose from the accident.

The plaintiffs opposed Allstate’s cross motion for summary judgment by raising two principal arguments in connection with the third cause of action. First, White Plains Hospital argued that the interpretation of the billing codes cannot be judicially noticed as it does not rest upon knowledge or sources widely accepted as unimpeachable. Second, White Plains Hospital argued that Allstate’s counsel was not qualified as a medical expert to render an opinion on whether the hospital’s care and treatment was, or was not, related to the underlying automobile accident.

In the order appealed from dated November 15, 2007, the Supreme Court held, with respect to the third cause of action, that White Plains Hospital established its demand upon proper forms that Allstate pay the sum of $26,979.83, and that Allstate failed to pay the claim or issue a denial of claim within the required 30 days thereafter (2007 NY Slip Op 34402[U]). With respect to Allstate’s opposition and the cross motion, the Supreme Court implicitly took judicial notice of the HHS codes key and held that counsel’s affirmation, which argued that invoiced treatment was unrelated to the automobile accident, was medically insufficient. The Supreme Court, inter alia, granted that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action asserted by White [*3]Plains Hospital. For the reasons set forth below, we affirm the order insofar as appealed from.{**61 AD3d at 17}

II. The Payment of First-Party Benefits Under Insurance Law § 5106

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

Section 5106 of article 51 is entitled “Fair claims settlement” and provides, in pertinent part, that

“(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.”

Pursuant to the statutory and regulatory framework governing the payment of no-fault benefits, insurance companies are required either to pay or deny a claim for first-party benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]). Within 10 business days after receipt of the claim notice, the insurer may send an initial request for verification of the claim (see 11 NYCRR 65-3.5 [a]). After receipt of verification, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt (see 11 NYCRR 65-3.5 [b]). The 30-day period in which to either pay or deny a claim is{**61 AD3d at 18} extended where the insurer makes a request for additional verification within the requisite 15-day time period (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Thus, a timely additional verification request tolls the insurer’s time within which to pay or deny a claim (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]).

Eleven years ago, the New York Court of Appeals carved out a narrow exception to the requirement that an insurer must pay or deny a claim within the 30-day period prescribed by the No-Fault Law. The Court of Appeals held that an insurer “may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563). The Court stressed, however, that the lack of coverage “exceptional exemption” does not apply where the insurer claims that the hospital treatments were medically excessive, since the defense of medical excessiveness seeks to excuse only part, but not all, of the no-fault benefits (90 NY2d at 199, 202). Thus, where an insurer alleges excessive treatment as a basis for denying coverage, a denial of claim must be served within the [*4]time-sensitive deadline of the No-Fault Law, at least as to the portion of the demand that is deemed excessive.

Two years later in Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]), this Court applied the Central General Hospital rationale and, in so doing, explained that the insurer who asserts entitlement to the “exceptional exemption” must “come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (id. at 19-20). This Court determined that in applying Central General Hospital, “the question of whether an injury was entirely preexisting (i.e., not covered) or was in whole or in part the result of an insured accident (i.e., covered) is hybrid in nature, and cannot be resolved without recourse to the medical facts” (id. at 19 [emphasis added]).

This Court further emphasized that the underlying purpose of the No-Fault Law would be undermined if a plaintiff hospital were required to prove as a threshold matter that a patient’s{**61 AD3d at 19} condition was caused by the accident and unrelated to his or her entire medical history. Under such circumstances, “insurers would be motivated to refrain from issuing timely disclaimers in order to impose such an onerous threshold burden upon claimants” (id. at 20). The burden of proving the lack of a nexus between an accident and medical treatment therefore falls upon the insurer seeking to deny payment (id. at 19-20).

Against this backdrop, the judicially noticed admissibility of the proffered diagnosis and procedure codes key published by HHS, and whether the deciphered codes, if admitted, establish that medical diagnosis and treatment was or was not related in whole or in part to Hafford’s automobile accident, assumes dispositive significance to the resolution of this appeal.

III. Judicial Notice

CPLR 4511 (b) provides that upon request of a party, a court may take judicial notice of federal, state, and foreign government acts, resolutions, ordinances, and regulations, including those of their officers, agencies, and governmental subdivisions. While the concept of judicial notice is elastic (see Richardson, Evidence § 52 [Prince 10th ed]) and applicable to a wide range of subject matter, official promulgations of government appear to be particularly appropriate for judicial notice, given the manner that CPLR 4511 expressly singles them out for such treatment.

Judicial notice has never been strictly limited to the constitutions, resolutions, ordinances, and regulations of government, but has been applied by case law to other public documents that are generated in a manner which assures their reliability. Thus, the concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720 [2001]; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 827 [1999]; Mackston v State of New York, 126 AD2d 710 [1987]), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532 [1975]), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791 [1998]; Matter of Maidman, 42 AD2d 44, 47 [1973]), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183 [1930]), legislative journals (see Browne v City of New York, 213 App Div 206, 233 [1925]), the consumer price index (see Sommers v Sommers, 203{**61 AD3d at 20} AD2d 975, 976 [1994]; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947 [1978]), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24 [1979]), death certificates maintained by the Department of Health (see Matter of Reinhardt, 202 Misc 424, 426 [1952]), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505 [2008]; Walker v City of New York, 46 AD3d 278, 282 [2007]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11, 18 [2002]). Even material derived from official government Web sites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc 3d 295 [Sup Ct, Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A], 2008 NY Slip Op 50925[U] [Civ Ct, Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A], 2007 NY Slip Op 50336[U] [Civ Ct, Kings County 2007]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A], 2006 NY Slip Op 51242[U] [Buffalo City Ct 2006]).

White Plains Hospital argues that the codes key available on the HHS Web site does not qualify for judicial notice by relying upon the language of this Court in Ptasznik v Schultz (247 AD2d 197 [1998]). In Ptasznik, then-Justice Albert Rosenblatt defined the test for judicial notice as “whether the fact rests upon knowledge or sources so widely accepted and unimpeachable that it need not be evidentiarily proven” (id. at 198, citing Hunter v New York, Ontario & W. R.R. Co., 116 NY 615 [1889]). White Plains Hospital maintains that code numbers which require deciphering do not constitute general information widely accepted by the average layperson. However, Ptasznik discusses specifically, and the universe of case law recognizes generally, two disjunctive circumstances where information may be judicially noticed. The first is when information “rests upon knowledge . . . [that is] widely accepted” (Ptasznik v Schultz, 247 AD2d at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 199). The second “rests upon . . . sources [that are] widely accepted and unimpeachable” (id. at 198 [emphasis added]), such as reliable uncontested governmental records.

Here, the diagnosis and procedure codes key maintained by the United States Government on its HHS Web site is of sufficient authenticity and reliability that it may be given judicial notice. The accuracy of the codes key is not contested by White Plains Hospital, and is not subject to courtroom fact-finding (see{**61 AD3d at 21} Affronti v Crosson, 95 NY2d at 720). The fact that the code system might not be readily understood by the lay public is of no significance, as the information is proffered for judicial notice not on the basis of being generally understood by the public, but rather, on the basis of its reliable source.

We hold, therefore, that the diagnosis and procedure codes key published by the United States Government on its HHS Web site may properly be given judicial notice (see CPLR 4511 [b]), as the key is reliably sourced and its accuracy not contested.

Using the codes key in evidence, the appellant, Allstate, accurately deciphered for the Supreme Court the medical diagnoses and treatments administered by White Plains Hospital to Hafford during the course of Hafford’s hospital stay.

IV. The Medical Evidentiary Value of the Deciphered Codes

The plaintiffs established their prima facie entitlement to summary judgment on the third cause of action asserted by White Plains Hospital to recover no-fault benefits on behalf of its assignor, Hafford (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), by submitting the prescribed statutory billing forms, the affidavit of its biller, the certified mail receipt, and the signed return receipt card referencing the patient and the forms (see Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 904; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683, 683-684 [2007]). Unlike negligence actions where plaintiffs must prove causation, plaintiffs seeking to recover first party no-fault payments bear no such initial burden, as causation is presumed (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 20; Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 97, 99 [2007]).

In opposition, Allstate relies upon the judicially-noticed diagnosis and procedure codes key published by HHS to argue, via an attorney’s affirmation, that care and treatment rendered to Hafford by White Plains Hospital was causally unrelated to Hafford’s automobile accident. [*5]

Allstate has failed to come forward with proof in admissible form, as is its burden in opposing summary judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19{**61 AD3d at 22}-20), to raise a triable issue as to ” ‘the fact or founded belief that the alleged injury does not arise out of an insured incident’ ” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19, quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997] [emphasis omitted]; see New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]). While the existence of the diagnostic codes and the clinical definitions of Hafford’s treated medical conditions may not be in dispute, the question of whether such conditions were wholly unrelated to his automobile accident or not exacerbated by the accident “cannot be resolved without recourse to the medical facts” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Here, Allstate’s counsel, in his affirmation, failed to set forth any basis on which to conclude that he was a medical expert qualified to render an opinion on causality (see Contacare, Inc. v CIBA-Geigy Corp., 49 AD3d 1215 [2008]; Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296 [2000]). No physician or other medical expert affidavit was included in Allstate’s submissions to explain the codes, the diagnoses and, most importantly, the causation or exacerbation, or lack of causation or exacerbation of conditions, in relation to the subject automobile accident. The mere deciphered codes, in and of themselves, are insufficient.

We acknowledge that there are rare but recognized instances where medical issues can be resolved by a trier of fact without resort to expert opinion. A classic example is if a surgeon leaves a foreign object inside a patient’s body, the absence of the surgeon’s proper exercise of care and skill speaks for itself without the need for an expert (see Kambat v St. Francis Hosp., 89 NY2d 489, 496 [1997]). Here, Allstate argues that no medical expert affidavit is required (see St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743, 744 [2003]) as “the codes speak for themselves and merely require the application of simple logic.” We do not agree. The deciphered codes identify Hafford’s diagnoses and treatments but do not address causality. Certain of the deciphered codes such as infection, acute respiratory failure, convulsions, and expectoration of blood are not necessarily conditions unrelated to an automobile accident. An expert’s affidavit is required for a court to conclude the absence of proximate causality as to these conditions (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19) or to at least find a nonspeculative question of fact as to causality (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d at 1020).{**61 AD3d at 23} The remaining coded conditions, which on their face might appear unrelated to an automobile accident, could conceivably represent exacerbations of preexisting conditions in the absence of expert medical opinion attesting otherwise. Exacerbations of preexisting conditions are covered by the No-Fault Law (see Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 660-661 [2004]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 18).

Allstate’s submissions therefore suffer from an inescapable paradox. If the diagnostic codes pertain to conditions unrelated to Hafford’s accident, Allstate was required to submit an affidavit from a medical expert (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). If, on the other hand, the diagnostic codes represent conditions related to the accident, then Allstate was required to either pay the no-fault claim, or deny payment on other grounds, within 30 days of receiving the demand (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 903; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 569). Either way, Allstate failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of White Plains Hospital on the third cause of action.

Based upon the foregoing, we conclude that the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action [*6]asserted by White Plains Hospital.

To the extent that Allstate argues that the branch of its cross motion which was for summary judgment dismissing the third cause of action should have been granted, this contention is not properly before this Court as Allstate’s notice of appeal limited the scope of the appeal to that part of the Supreme Court’s order which awarded summary judgment to White Plains Hospital on the third cause of action (see CPLR 5515 [1]; Spencer v Crothall Healthcare, Inc., 38 AD3d 527, 528 [2007]; Yannotti v Four Bros. Homes at Heartland Condominium I, 24 AD3d 659, 660-661 [2005]).

Accordingly, we affirm the order insofar as appealed from.

Fisher, J.P., Miller and Eng, JJ., concur.

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

Supreme Court, Queens County

15958 2007

Charles J. Markey, J.

This motion is determined as follows:

This Court’s order of June 27, 2008, is recalled and the following is substituted in its place:

The Court’s records reveal that defendant Rosillo & Licata, P.C. (sued herein as Rosillo & Licata) originally moved on October 29, 2007, to dismiss the complaint and that the motion was adjourned to November 8, 2007, at which time the motion was granted as plaintiff’s counsel stated that he had no opposition to the motion to dismiss. Clearly, there was a misunderstanding as to the status of said motion, as the parties had entered into a stipulation dated November 7, 2007, whereby they adjourned said motion on consent until December 3, 2007, and agreed that plaintiff’s opposition papers were to be received by opposing counsel on or before November 19, 2007, and the defendant’s reply was to be served on or before November 30, 2007. Although the stipulation was filed with the court on November 8, 2007, pursuant to the parties’ agreement, the court was unaware of the stipulation at the time the motion calendar was called.

In view of the fact that the court was not timely apprised of the parties’ November 7, 2007 stipulation, and as it is preferable to determine the motion to dismiss on the merits, the order of November 8, 2007, is hereby vacated, and the prior motion shall now be determined on the merits.

Defendant Rosillo & Licata, in its prior motion seeks an order dismissing the complaint on the grounds of documentary [*2]evidence and failure to state a cause of action, pursuant to CPLR 3211(a)(1)and (7).

On December 7, 2003, Justice Paitou (or Paitoo) was in the process of removing an item from the trunk of his vehicle when he was struck by a motor vehicle operated by Bakary Sow. Mr. Paitou sustained serious injuries, including the amputation of his right leg.

Defendant Rosillo & Licata, P.C. was retained by Mr. Paitou with respect to his claim for personal injuries against Mr. Sow’s insurer, American Transit Insurance Company (“American Transit”). The court notes that although plaintiff in its complaint alleges that the accident occurred on December 9, 2003, the documentary evidence submitted herein indicates that the accident occurred on December 7, 2003. The court also notes that the documentary evidence submitted herein identifies the injured individual as Justice Paitoo. However, for the purposes of this motion the court will use the spelling of Paitou as set forth in the complaint and the affidavit of Mr. Licata.

Joseph Licata, Jr., states in his affidavit that Mr. Paitou informed him that he was self-employed and not working in the course of his employment at the time of the accident, and that his client so “affirmed” his employment status in his application for No-Fault benefits. Mr. Licata states that during the time Mr. Paitou’s claim against Mr. Sow’s insurer was pending, he was not informed or made aware that Paitou had applied for Worker’s Compensation benefits, and he relied upon Mr. Paitou’s statements concerning his employment. Mr. Licata states that during the course of his negotiations with American Transit, medical reports and records were exchanged regarding Mr. Paitou’s injuries and that no claim was made for economic damages or loss of income. He further states that although his law firm inquired as to the existence of any applicable excess insurance, American Transit informed him that no such coverage existed. Rosillo & Licata also hired an investigator regarding Mr. Sow and it was determined that Sow did not have any personal assets.

On July 1, 2004, Rosillo & Licata settled Mr. Paitou’s claim against Mr. Sow for $100,000.00, the full amount of the policy maintained by American Transit, and executed a general release. Mr. Paitou received $67,000.00 and Rosillo & Licata received attorney’s fees of $33,000.00, equaling one-third of the settlement.

Marcus Francis, a claims representative for Hereford Insurance Company (Hereford), in a letter dated July 15, 2004 and addressed [*3]to Rosillo & Licata, stated that Hereford is the insurer for Norman Hacking Corp. for Worker’s Compensation insurance, and asserted a continuing lien against any recovery for injuries or damages arising out of an occurrence on December 7, 2003. This letter identifies the employer as Norman Hacking Corp. and the claimant as Justice Paitou. Mr. Licata states in his affidavit that he received Mr. Francis’ letter in August 2004, and that in his conversations with Mr. Francis he informed him that Mr. Paitou’s claim against Mr. Sow had been settled; that Mr. Paitou had received payment; and that as the claim was for serious injury, the lien should be waived, as it amounted to non-economic injury. He stated that he did not hear from Hereford again until it commenced this action on June 22, 2007.

In the within action, Hereford seeks to recover the full amount of a statutory lien, in the sum of $198,926.00, pursuant to Worker’s Compensation Law section 29. Hereford alleges in its complaint that it issued a Worker’s Compensation Insurance policy to Sofi Hacking Corporation (“Sofi”); that on December 9 [sic], 2003, Justice Paitou was an employee of Sofi and that he sustained personal injuries during the course of his employment while removing an object from the trunk of his vehicle when he was struck by a vehicle driven by Bakary Sow.

Plaintiff alleges that Sofi filed a C-2 “Employer’s Report of Injury/Illness” dated December 17, 2003 with the Worker’s Compensation Board; that the claim was assigned an index number; that at a Worker’s Compensation Board hearing held on February 25, 2005, it was determined that Mr. Paitou had a work related injury to his right leg and that his average weekly wage for the year worked prior to his work related injury was $250.00; that the Board directed the claimant to “produce proof of consent to settle third party action and closing statement from third party action”; and that no further action was taken by the Worker’s Compensation Board. It is alleged that Hereford paid medical and indemnity benefits to Mr. Paitou or his medical providers, totaling $296,904.88. Hereford further alleges in its complaint that Mr. Paitou, through his counsel Rosillo & Licata commenced a third-party personal injury action in the Supreme Court.

The documentary evidence submitted herein includes a form entitled “Employer’s Report of Work-Related Accident/Occupational Disease” which was filed with the Worker’s Compensation Board identifies Mr. Paitou’s employer as Norman Hacking Corp., states that the nature of the business is a medallion taxi lease, and states that injured person (Mr. Paitou) is a “TAXI DRIVER SELF CONTRACTOR.” The Worker’s Compensation Board’s notice of decision, identifies the claimant as Justice Paitoo, his employer as Sofi [*4]Hacking Corp., and the carrier as Hereford Insurance Company.

A health insurance claim form which states that services were rendered at Lincoln Hospital lists the “insurance plan name or program name” as HEREFORD INS CO (WC/NO FAULT),” but does not include the name of an employer. Other medical charges generated by New York Presbyterian Hospital lists the insured as Justice Paitoo, the “group name” as “SOFFIES CAB CO,” and the payer as “Hereford Insurance Co.”

The Worker’s Compensation Board issued a notice of decision, filed on March 3, 2005, which states as follows:

“At the Worker’s Compensation hearing held on 2/25/05 involving the claim of Justice Paitoo at the Yonkers hearing location, Judge Gail Watson made the following decision, findings and directions:”

“DECISION: The claimant Justice Paitoo had a work related injury to his right leg. The claimant’s average weekly wage for the year worked before this work related injury or occupational disease is determined to be $250.00 per week per C-8 without prejudice.”

“Claimant to produce proof of consent to settle third party action and closing statement from third party action.”

“No further action pending same. No further action is planned by the Board at this time.”

This decision identified Mr. Paitou’s employer as Sofi Hacking Corp., and the compensation carrier as Hereford.

A second Notice of Decision filed on June 20, 2005 states that a Worker’s Compensation hearing was held on June 14, 2005, and that Mr. Paitou was directed to “produce proof of settlement with consent and closing statement for 3rd party action. No further action is planned by the Board at this time.”

A third Notice of Decision filed on July 27, 2005 states that at the hearing held on July 21, 2005, “Claimant did not appear to pursue the claim. Claimant has not yet produced proof of consent to settle his 3rd party action. No further action is planned by the Board at this time.”

There is no evidence that the Worker’s Compensation Board awarded Mr. Paitou benefits arising out of the December 7, 2003 accident. Therefore, Hereford’s claimed lien only pertains to the settlement paid by the insurance carrier who insured the vehicle operated by Mr. Sow. Although Hereford alleges in its complaint [*5]that a third-party action was commenced in the Supreme Court, no evidence has been submitted which establishes that an action was ever commenced by Rosillo & Licata, or any other law firm or attorney, on behalf of Mr. Paitou pertaining to the December 7, 2003 accident. It therefore appears that Mr. Paitou’s claim against the insurer of Mr. Sow’s vehicle, American Transit, was settled without the commencement of an action, for the sum of $100,000.00, the full value of that insurance policy. It is undisputed that Mr. Paitou received $67,000.00 and that Rosillo & Licata received a legal fee equal to $33,000.00, which represented one-third of the settlement.

Contrary to Rosillo & Licata’s claim herein, Hereford’s complaint does not assert a cause of action for negligence as regards this defendant. Rather, plaintiff seeks to enforce a statutory lien against both Rosillo & Licata and Mr. Paitou, pursuant to Worker’s Compensation section 29. Worker’s Compensation Law section 29(1) provides that a workers’ compensation carrier is entitled to be reimbursed for all indemnity and medical benefits paid up to the date of the third party action recovery, whether that recovery is by way of settlement or judgment, “after deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery.” Plaintiff thus may not seek to enforce a lien pursuant to Worker’s Compensation Law section 29 against Rosillo & Licata based upon the settlement of the claim and the payment of said law firm’s attorney’s fees.

The Court makes no determination at this time as to the amount of the lien plaintiff may seek against Mr. Paitou, as neither plaintiff nor Mr. Paitou have made a cross motion seeking such relief. The court further notes that as counsel for Rosillo & Licata does not represent Mr. Paitou in this action, counsel may not assert any arguments on his behalf.

In view of the foregoing, defendant’s motion to dismiss the complaint is granted, and the complaint is dismissed with prejudice as to both the moving defendant Rosillo & Licata and Justice Paitou.

Dated: January 13, 2009J.S.C.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated November 16, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

At trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered the testimony of its former employee and sought the admission of, inter alia, its purported claim forms into evidence. Defendant objected on the ground that said documents were hearsay and that plaintiff failed to lay a foundation for their admission pursuant to CPLR 4518. The court reserved decision. Plaintiff rested without calling any further witnesses. Defendant moved to dismiss the complaint due to plaintiff’s failure to make a prima facie case. The court reserved decision on that motion as well. After reviewing the parties’ submissions, the court dismissed the complaint, finding that plaintiff failed to make a prima facie case.

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: January 09, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 6, 2006, deemed from a judgment of said court entered December 26, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed with $25 costs.

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they were sufficient to establish plaintiff’s prima facie case. Defendant objected and cross-moved for a directed verdict dismissing the complaint. The court granted defendant’s cross motion, holding that plaintiff’s notice to admit was improper because it sought information going to the heart of the matter. A judgment was entered dismissing the complaint. This appeal by plaintiff ensued.

An admission that defendant received plaintiff’s claim form is not a concession of the facts set forth in said claim form (Bajaj v General Assur. Co., 18 Misc 3d 25, 28 [App Term, 2d & 11th Jud Dists 2007]; 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 & 11th Jud Dists 2006]). While defendant acknowledged that it received plaintiff’s claim form and that a true copy was annexed to plaintiff’s notice to admit, it remained plaintiff’s burden to lay a sufficient foundation to establish that the claim form is admissible pursuant to the business records exception to the hearsay rule to prove the truth of the matters asserted therein (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], affg 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff failed to proffer such [*2]proof, the court properly held that plaintiff failed to make a prima facie showing (see id.; Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is affirmed (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).

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

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 09, 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, Queens County (Diane A. Lebedeff, J.), dated August 1, 2007, deemed from a judgment of said court entered September 6, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 1, 2007 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,745.18.

Judgment reversed without costs, order dated August 1, 2007 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for leave to amend its answer and, upon such amendment, for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered in September and October 2003, plaintiff moved for summary judgment. Defendant cross-moved for leave to amend its answer to assert the affirmative defenses of res judicata and collateral estoppel, and, upon such amendment, for summary judgment dismissing the complaint. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). The court must examine the merits of a proposed amendment since leave to amend should not be granted where the proposed amendment is totally without merit or is palpably insufficient as a [*2]matter of law (see Ingrami, 45 AD3d at 808; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]).

Defendant sought leave to interpose the affirmative defenses of res judicata and collateral estoppel because there was a prior arbitration proceeding between the parties in which plaintiff had sought to recover assigned first-party no-fault benefits for services rendered from August 2003 through January 14, 2004, in which proceeding the arbitrator had determined that plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]). Inasmuch as plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to defendant’s answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill, 42 AD3d at 433), defendant should have been granted leave to amend its answer.

Under the doctrine of collateral estoppel, a party is precluded from relitigating an issue which has been previously decided against it in a prior proceeding where it had a full and fair opportunity to litigate the issue (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). “The two elements that must be satisfied to invoke the doctrine of estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue (see Kaufman v Lilly Co. [65 NY2d 449, 455 (1985)])” (Luscher v Arrua, 21 AD3d 1005, 1007 [2005]). “The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate” (D’Arata, 76 NY2d at 664; see also Kaufman, 65 NY2d at 456).

Collateral estoppel effect can, under appropriate circumstances, be given to arbitration awards (see Matter of American Ins. Co. [Messinger Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]). Where a plaintiff has freely elected to proceed to arbitration with the assistance of counsel despite the availability of an alternate judicial forum and has had the opportunity to employ procedures substantially similar to those utilized in a court of law, it may be found that the plaintiff has had a full and fair opportunity to litigate the issue determined in the arbitration proceeding (Clemens v Apple, 65 NY2d 746 [1985]).

In the instant matter, defendant established that the issue of whether plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322) was identical to the issue previously decided by the arbitrator. In opposition to defendant’s cross motion, plaintiff failed to address the branch of the cross motion which sought summary judgment dismissing the complaint on the ground of collateral estoppel. Therefore, plaintiff failed to establish that it did not receive a full and fair opportunity to litigate in the arbitration proceeding. Thus, the branch of defendant’s cross motion seeking summary judgment should have been granted.

Accordingly, the judgment is reversed, the order dated August 1, 2007 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for leave to amend its answer, and, upon such amendment, for summary judgment dismissing the complaint [*3]is granted.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 09, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), dated January 8, 2007, deemed from a judgment of the same court entered November 9, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered a notice to admit and an affirmation made by defendant’s attorney in order to prove its prima facie case at trial. Plaintiff then rested without calling any witnesses. The court found that plaintiff, having failed to produce a witness, failed to make its prima facie case, and dismissed the complaint. For the reasons set forth in Bajaj v General Assur. (18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]), we affirm the judgment.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 09, 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 (Kathryn E. Freed, J.), entered June 22, 2006, deemed from a judgment of the same court entered August 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 22, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,757.32.

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, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff’s officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s officer was insufficient to demonstrate that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, 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]; 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]). [*2]Consequently, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: January 09, 2009

[*1]

Supreme Court, Appellate Term, Second Department, January 9, 2009

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, Stuart M. Bodoff and Melissa M. Murphy of counsel), for appellant. Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for respondent.

{**23 Misc 3d at 6} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order dated June 28, 2007 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of{**23 Misc 3d at 7} medical necessity. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Since defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the Civil Court’s implicit determination with respect thereto.

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto (see CPLR 2001; Matter of Goffredo v City of New York, 33 AD3d 346 [2006]; Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645 [1999]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700 [1983]). Accordingly, the affidavits submitted by defendant were sufficient to establish that its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practice and procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

The papers submitted by defendant in support of its cross motion, including the affirmed peer review report, established prima facie that there was no medical necessity for the supplies provided by plaintiff, which proof was unrebutted. As a result, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the judgment is reversed, the order dated June 28, 2007 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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