[*1]

Supreme Court, Appellate Term, Second Department, December 31, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

{**22 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the two claim forms that are the subject of this action, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to defendant’s motion was based upon oral decisions set forth in trial transcripts, in three unrelated actions against another insurance company, in which the court found that plaintiff’s treating providers were employees. The court granted defendant’s motion, finding that plaintiff submitted claim forms that stated that the billed-for services were rendered by an independent contractor and implicitly holding that plaintiff was bound by the claim forms it submitted. Plaintiff appeals, arguing that an insurer may not be awarded summary judgment based upon the defense that the billed-for services were rendered by an independent contractor. Plaintiff argues further that the oral decisions by other judges of the same court contained in the trial transcripts are evidence that the treating providers were employees, thereby rebutting the information contained in plaintiff’s own claim forms and raising a triable issue of fact.

Contrary to plaintiff’s contention, the fact that health care services sued for by a professional corporation were rendered by an independent contractor is a proper basis upon [*2]which to award a no-fault defendant summary judgment dismissing the complaint made against it (see Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137[A], 2008 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists 2008]). While plaintiff claims that Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]) stands for the proposition that a plaintiff may recover even if services were rendered by an independent contractor, such an interpretation lacks merit.

A provider demonstrates its entitlement to collect assigned first-party no-fault benefits by proving the submission of its statutory claim forms, 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]). Payment is overdue “if not paid within thirty days after the claimant supplies proof of{**22 Misc 3d at 72} the fact and amount of loss sustained” (Insurance Law § 5106 [a]). A claim form seeking reimbursement for services rendered by an independent contractor does not supply proof of a loss, because

“where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a ‘provider’ of the medical services rendered within the meaning of [11 NYCRR 65-3.11 (a)] and is therefore not entitled to recover ‘direct payment’ of assigned no-fault benefits from the defendant insurer” (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]).

In the case at bar, the claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant. Plaintiff did not submit bills that entitled it to payment, and correction of the defect involved herein should not be permitted once litigation has been commenced (see generally Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007] [litigation that was commenced prior to payment becoming overdue was premature and the cause of action was dismissed]). The independent contractor defense is nonprecludable (see Rockaway Blvd. Med. P.C., 9 Misc 3d at 54). An insurer should be able to rely on the assertions in the claim form, and, in keeping with the aim of “provid[ing] substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), should be able to handle a claim for services rendered by an independent contractor accordingly without engaging in further consideration of the claim. An insurer is not obliged to issue a denial in order to assert the nonprecludable, independent contractor defense. Consequently, if a provider were to be permitted to demonstrate during litigation that the claim form was incorrect and services were, in fact, rendered by an employee, not only would the insurer, which exercised its option not to expend further efforts to defend a facially meritless claim, have lost its opportunity to conduct meaningful claims verification, but also its decision not to issue a denial would result in its preclusion from introducing most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Moreover, upon a court’s finding that services were rendered by{**22 Misc 3d at 73} an employee, and not an independent contractor as stated on the claim form prepared by the provider, an award of interest beginning to accrue 30 days after the submission of the claim form, as mandated by the no-fault regulations (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; § 65-3.9 [a]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007]), would be inequitable. Furthermore, an insurer might have [*3]timely paid a claim, had the claim form prepared by the provider not stated that the services were rendered by an independent contractor, thereby avoiding the need to retain counsel to defend an action that might have been avoided. If the provider is allowed to amend the claim form, on the other hand, plaintiff would be entitled to recover its attorney’s fees from defendant for unnecessary litigation (see Insurance Department Regulations [11 NYCRR] § 65-3.10 [a]).

In view of the foregoing, the Civil Court properly granted defendant’s motion to dismiss the complaint (but see Atlantis Med., DC v Liberty Mut. Ins. Co., 19 Misc 3d 131[A], 2008 NY Slip Op 50584[U] [App Term, 1st Dept 2008]).

We note that, under appropriate circumstances, a provider who has submitted a claim form that improperly designates the treating provider as an independent contractor could, upon realizing its mistake, submit a new claim form with the proper designation along with “written proof providing clear and reasonable justification for the failure” to submit the claim within 45 days of the rendering of services (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [Proof of Claim]). We do not pass upon whether the circumstances presented in this case would constitute “reasonable justification” for plaintiff’s failure to timely submit a proper claim.

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

—[*1] Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant.

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

In an action to recover no-fault medical benefits under two insurance contracts, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February 28, 2008, which denied its motion pursuant to CPLR 5015 (a) (1) to vacate a judgment of the same court dated September 18, 2007, entered upon its default in appearing or answering the complaint, which was in favor of the plaintiffs and against it in the principal sum of $43,030.53.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate a judgment entered upon its default in appearing or answering the complaint since it failed to demonstrate a reasonable excuse for the default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Giovanelli v Rivera, 23 AD3d 616 [2005]). The plaintiffs established that they effectuated service upon the defendant through delivery of the summons and complaint upon the Assistant Deputy Superintendent and Chief of Insurance (see Insurance Law § 1212; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; see also CPLR 311 [a] [1]). The defendant did not contend that the address on file with the Superintendent of Insurance was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; [*2]Carrenard v Mass, 11 AD3d 501 [2004]; Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]). Even if the defendant’s motion were treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]), the defendant failed to meet its burden of showing that it did not receive actual notice of the summons in time to defend the action (see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]). Skelos, J.P., Dillon, Carni and Leventhal, JJ., concur.

[*1]

Second Department, December 30, 2008

Globe Surgical Supply v GEICO Ins. Co., 12 Misc 3d 1185(A), 2006 NY Slip Op 51446(U), appeal dismissed.

APPEARANCES OF COUNSEL

Locks Law Firm, PLLC, New York City (Seth R. Lesser and Andrew P. Bell of counsel), and Manoussos & Associates, Garden City, for appellant (one brief filed).

O’Melveny & Myers, LLP, New York City (Ralph P. DeSanto, Paul R. Koepff and Benjamin B. Bianco of counsel), for respondent.

{**59 AD3d at 130} OPINION OF THE COURT

Dickerson, J.

These appeals require us to address whether it is appropriate to certify a class action challenging the validity, under regulations in effect prior to October 6, 2004, of a no-fault insurer’s use of the prevailing geographic rate or the reasonable and customary rate for health care services in calculating first-party benefits due to a claimant or health-care provider.

In 2004 the plaintiff, Globe Surgical Supply (hereinafter Globe), as assignee of Remy Gallant, commenced the instant class action alleging, inter alia, that the defendant, GEICO Insurance Company (hereinafter GEICO), violated the regulations promulgated by the New York State Insurance Department (hereinafter the Insurance Department) pursuant to the no-fault provisions of the Insurance Law, by systematically reducing its reimbursement for medical equipment and supplies, specifically, durable medical equipment (hereinafter DME), based on what it deemed to be “the prevailing rate in the geographic location of the provider,” or “the reasonable and customary rate for the item billed.” Specifically, Globe alleges that GEICO wrongfully adjusted or reduced reimbursement payments of claims for DME subject to former part E (11{**59 AD3d at 131} NYCRR Appendix 17-C) (hereinafter former Part E) of the 23rd Amendment to Insurance Department Regulation 83 (11 NYCRR part 68), to an amount less than the amount charged in the proof of claim.

[*2]No-Fault Statutory and Regulatory Scheme

The Comprehensive Motor Vehicle Reparations Act (Insurance Law §§ 5101-5109 [hereinafter the No-Fault Law]) provides for the payment of first-party benefits to persons injured in automobile accidents involving New York State residents and/or vehicles registered in the state (see Insurance Law § 5103 [a]). “First party benefits” are defined as “payments to reimburse a person for basic economic loss” (Insurance Law § 5102 [b]). “Basic economic loss” includes “all necessary expenses incurred for . . . medical, hospital . . . and prosthetic services,” such as DME (Insurance Law § 5102 [a] [1]). “Payments hereunder for necessary medical expenses shall be subject to the limitations and requirements of section 5108 of the New York Insurance Law” (11 NYCRR 65-1.1 [d]). Insurance Law § 5108 authorizes the Superintendent of Insurance (hereinafter the Superintendent) to establish a fee schedule for DME, which had been, at all times relevant to this appeal, set forth in former Part E. Former Part E regulated and set the amount of reimbursement to providers of DME as follows: “[f]or medical equipment and supplies (e.g., TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.”^[FN1]

Regulation 68

The Superintendent also promulgated Regulation 68, codified at 11 NYCRR part 65, to provide the specific procedural details for the payment of benefits. Under Regulation 68, the injured party is required to notify the insurer and to submit a written proof of claim for medical treatment no later than 45 days after services are rendered. Typically, as is the case here, the insured party orders DME from the supplier (e.g. Globe) and the supplier is assigned the right to claim reimbursement. Upon receipt of proof of claim, an insurer has 15 business days within which{**59 AD3d at 132} to request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). An insurance company must pay or deny the claim within 30 calendar days after receipt of the proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). “In the event any person making a claim for first-party benefits and the Company do not agree regarding any matter relating to the claim, such person shall have the option of submitting such disagreement to arbitration” (11 NYCRR 65-1.1 [d]).

The Litigation

In a complaint dated July 19, 2004, Globe alleged that GEICO

“[a]t some point in time . . . ceased paying claims in accordance with the terms of the [no-fault] regulations and . . . instituted a systematic pattern and practice of reviewing claims for reimbursement against what it deemed to be the ‘prevailing rate in the geographic location of the provider,’ ‘the reasonable and customary rate for [the] item billed,’ or similar rationales . . . There is nothing in [former] Part E which permits an insurer to reduce reimbursements for [DME] by such factors as reasonable and customary charges or geographically prevailing rates. Yet, that is precisely what defendant GEICO is doing and has been doing.”

Specifically, Globe alleged that its assignor, Remy Gallant, was injured in an accident on February 10, 2001, with a GEICO policyholder. According to the complaint, Gallant purchased a transcutaneous electrical nerve stimulator (hereinafter the TENS unit) from Globe, which cost $340. Globe submitted the claim to GEICO, as assignee of Gallant, in the amount of $510 (representing [*3]150% of the actual cost). On May 23, 2001, GEICO denied the claim for that amount and only reimbursed Globe in the amount of $200. As noted on Gallant’s claim form, GEICO partially denied the claim because the cost submitted was “far in excess of the industry average which is $107.82 . . . Based on this, a reasonable reimbursement is 150% over this amount which is $161.73. However, in consideration of the potential range, $200.00 will be reimbursed.”

Globe sought injunctive relief and asserted four causes of action sounding in (1) violation of the No-Fault Law, (2) breach of contract, (3) violation of General Business Law § 349, and (4) unjust enrichment. The Supreme Court granted that branch of GEICO’s motion which was to dismiss the first cause of action{**59 AD3d at 133} for failure to state a cause of action, and those branches of GEICO’s motion which were to dismiss the third and fourth causes of action for lack of standing. In denying that branch of GEICO’s motion which was to dismiss the second cause of action alleging breach of contract, the Supreme Court noted that the

“plaintiff’s claim is based upon Insurance Department Regulations, which are part of the policy as a matter of law (see Insurance Law § 5103 [h]) and which are specifically set forth in plaintiff’s complaint . . . Insurance policies covering other members of the proposed class need not be identified at this stage of the action.”

Globe purportedly commenced this action on behalf of itself and all members of a class “consisting of all persons who had reimbursement payments of claims for medical equipment and supplies subject to [former] Part E of the Twenty-Third Amendment to Regulation No. 83 (11 NYCRR 68) (‘Part E Reimbursements’) adjusted or reduced by Geico.”

GEICO answered the complaint and set forth numerous affirmative defenses and counterclaims alleging fraud and unjust enrichment against Globe and the class. In particular, GEICO asserted that Globe and other prospective class members committed fraud by

“engag[ing] in a scheme to exploit the payment formula . . . in order to collect fraudulent charges for [DME] purportedly provided to individuals who were injured in automobile accidents . . . Among other things, Globe . . . charged grossly inflated prices for the supplies it purportedly sold . . . and submitted false ‘documentation’ of its costs . . . GEICO [seeks] to recover the money that Globe . . . has stolen from the GEICO Companies (and if this case is certified as a class action, that other members of the purported class have stolen) by submitting thousands of fraudulent charges for DME.”

Prior to the submission of the motion at issue on this appeal, the parties conducted discovery, which included the depositions of Globe’s principal, Jean M. Francois, and a supervisor at GEICO, Valerie Coffey. Francois testified that he owned Globe, which dispenses DME to patients. Francois acknowledged that P.Z.F. Management Company, Inc., was the actual name of the company doing business as Globe. During his deposition, Francois invoked the Fifth Amendment to the United States Constitution{**59 AD3d at 134} when asked questions about shareholders’ meetings, tax preparation, his arrest for insurance fraud,^[FN2] and his knowledge of other supply companies. Francois stated that, during the normal course of business, he paid for DME by check. Repeatedly throughout his deposition, [*4]Francois was shown documents that had the same invoice number and dates but represented the purchase of two different items of DME. Francois was also shown documents from Allstate Insurance Company representing the same invoice numbers submitted for various DME items. Francois had no explanation as to why he submitted the same invoice number numerous times to GEICO, representing the purchase of different items of DME. When asked to explain why the same invoice for the purchase of one lumbosacral support custom fabric was submitted 15 times to both GEICO and Allstate, Francois responded: “since that’s what I pay for it and I stick with that one invoice and send it out . . . it wasn’t required or specifically by any insurance company to ask me to send that specific invoice that matches the claim.”

Valerie Coffey averred that she was the personal injury protection manager and supervisor at GEICO’s Woodbury office, which processed no-fault claims during the relevant time period. Coffey testified that state guidelines required receipt of proof of claim. She acknowledged that, once received, GEICO had 30 days to deny or pay the bill. Coffey testified that it was her understanding that the 150% reimbursement for DME supplies should be based on reasonable cost, which she defined as a “bona fide arm’s length transaction.” Coffey stated that in cases where GEICO saw inflated pricing for DME supplies, it performed a survey of multiple vendors and wholesalers and provided reimbursement based on the amount determined by the market survey, rather than 150% of the amount set forth on the submitted invoice. The first survey applied to the TENS unit and the second survey covered cervical collars, pillows, back massagers, lumbosacral support, and thermophore. Coffey{**59 AD3d at 135} explained that, based on the survey, the average price for a TENS unit was in the $160 range. Coffey stated that, to be on the “fair side,” GEICO decided to reimburse them at the rate of $200 per unit, but that GEICO did not reimburse up to 150% of the amount set forth on the invoice.

Coffey stated that there were more than 10 DME suppliers who submitted claims to GEICO for reimbursement. When asked if the suppliers who submitted claims for reimbursement numbered more than 100, Coffey responded “once you get to a hundred, I’d be speculating.”

On March 3, 2006, Globe moved, inter alia, pursuant to CPLR 901 and 902 for class certification on behalf of a class of all persons who had reimbursement payments of claims for medical equipment and supplies subject to former Part E adjusted or reduced by GEICO to an amount less than the amount charged in the proof of claim,^[FN3] specifically to a “reasonable reimbursement of 150%” of either the “industry average” or “of the average retail price.” GEICO opposed the motion. The Supreme Court denied the motion and, upon granting that branch of Globe’s subsequent motion which was for leave to reargue, adhered to the original determination.

Class Certification: Burden of Proof and Liberal Construction

Article 9 of the CPLR is to be “liberally construed” (Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d 747, 748 [2007]; Wilder v May Dept. Stores Co., 23 AD3d 646, 649 [2005]; Jacobs v Macy’s E., Inc., 17 AD3d 318, 319 [2005]; Kidd v Delta Funding Corp., 289 AD2d 203 [2001]; Friar v Vanguard Holding Corp., 78 AD2d 83, 91 [1980]; see generally 3 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 901.04, 901.05, 901.20 [2d ed]) in favor of the granting of class certification if all of the prerequisites of CPLR 901 (a) (1)-(5) (see Matter of Colt Indus. Shareholder Litig., 77 NY2d 185, 194 [1991]; Klein v Robert’s Am. Gourmet Food, Inc., 28 AD3d 63, 69 [2006]; Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1998]; Friar v Vanguard Holding Corp., 78 AD2d at 90-91) and CPLR [*5]902 (1)-(5) (see Ackerman v Price Waterhouse, 252 AD2d at 191) are met.

The prerequisites articulated in CPLR 901 (a) include proof that the proposed class is so numerous that joinder of all members is impracticable, that common questions of law and{**59 AD3d at 136} fact applicable to the class predominate over questions affecting only individual members, that claims or defenses of the representative parties are typical of the claims or defenses of the class, and that the class action is superior to other available methods for the fair and efficient adjudication of the controversy.

The proposed class action must also meet the prerequisites of CPLR 902 (1)-(5). The relevant factors articulated in CPLR 902 (1) (“[t]he interest of members of the class in individually controlling the prosecution or defense of separate actions”), CPLR 902 (2) (“[t]he impracticability or inefficiency of prosecuting or defending separate actions”) and CPLR 902 (3) (“[t]he extent and nature of any litigation concerning the controversy already commenced by or against members of the class”) may, under the circumstances of this case, be subsumed under the prerequisite of superiority (see CPLR 901 [a] [5]). CPLR 902 (4) requires consideration of “[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum.” The selected forum is Nassau County, which is appropriate given the nature of the claims asserted (see Galdamez v Biordi Constr. Corp., 13 Misc 3d 1224[A], 2006 NY Slip Op 51969[U], *5 [2006], affd 50 AD3d 357 [2008] [“(T)he forum is appropriate, as the Public Works Projects were located in New York”]; Mazzocki v State Farm Fire & Cas. Co., 170 Misc 2d 70, 72 [1996] [“under the New York venue statute a class action is properly venued if at least one member of the class resides in the county where the action was brought”]) and the absence of a forum selection clause (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242, 247 [2006] [“Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes”]; Rocco v Pension Plan of N.Y. State Teamsters Conference Pension & Retirement Fund, 5 Misc 3d 1027[A], 2004 NY Slip Op 51580[U], *2 [2004] [motion to transfer purported class action from Kings County to Onondaga County as a more convenient forum granted as “the rules of the Pension Fund mandate that any action brought against it be commenced in the County of Onondaga”]). Finally, CPLR 902 (5) requires consideration of “[t]he difficulties likely to be encountered in the management of a class action.” The determination to grant class action certification rests in the sound discretion of the trial court (see Small v Lorillard Tobacco Co., 94 NY2d 43, 52-53 [1999]; Tosner v Town of Hempstead, 12 AD3d 589, 590 [2004]; Liechtung v Tower Air, 269 AD2d 363, 364 [2000]). The primary issue on a motion for class certification{**59 AD3d at 137} is whether the claims as set forth in the complaint can be efficiently and economically managed by the court on a classwide basis. The class representative has the burden of establishing the prerequisites of certification (see Kings Choice Neckwear, Inc. v DHL Airways, Inc., 41 AD3d 117 [2007]; Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d 747, 748 [2007]; Rabouin v Metropolitan Life Ins. Co., 25 AD3d 349, 350 [2006]; Rallis v City of New York, 3 AD3d 525, 526 [2004]; Liechtung v Tower Air, 269 AD2d at 364; Ackerman v Price Waterhouse, 252 AD2d 179 [1998]; Canavan v Chase Manhattan Bank, 234 AD2d 493, 494 [1996]).

Class Definition

On a motion for class certification, the court must be convinced that the proposed class is capable of being identified (see Colbert v Rank Am., 1 AD3d 393, 394-395 [2003]; Lichtman v Mount Judah Cemetery, 269 AD2d 319, 320-321 [2000]; Mitchell v Barrios-Paoli, 253 AD2d 281, 291 [1999]; Canavan v Chase Manhattan Bank, 234 AD2d at 494). Here, the class has been clearly defined as

“all persons who had reimbursement payments of claims for medical equipment and supplies subject to [former] Part E of the Twenty-Third Amendment to Regulation No. 83 (11 NYCRR 68) . . . adjusted or reduced by Geico based upon an ‘industry average’ to a ‘reasonable reimbursement of 150%’ of the ‘industry average’ or ‘of the average retail price,’ to an amount less than the amount charged in the proof of claim.”

[*6]Numerosity

CPLR 901 (a) provides that a class action may be maintained if, inter alia, “1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable.” GEICO did not challenge numerosity in its opposition to Globe’s original motion, but instead first raised the issue in its opposition to Globe’s motion for leave to reargue. As such, GEICO has waived any challenge to numerosity (cf. Friar v Vanguard Holding Corp., 78 AD2d at 96).

Nonetheless, the minimum number permissible may depend on a variety of factors. “There is no ‘mechanical test’ to determine whether . . . numerosity . . . has been met, nor is there a set rule for the number of prospective class members which must exist before a class is certified” (id. at 96 [citations{**59 AD3d at 138} omitted]). “Each case depends upon the particular circumstances surrounding the proposed class and the court should consider the reasonable inferences and commonsense assumptions from the facts before it” (id. [citations omitted]). In any event, the proposed class herein is, at a minimum, between 10 and 100 DME providers and, hence, the numerosity requirement is met (see Klakis v Nationwide Leisure Corp., 73 AD2d 521, 522 [1979] [class certification properly denied where putative class consisted of only 21 individuals]; Caesar v Chemical Bank, 118 Misc 2d 118, 119 [1983], affd 106 AD2d 353 [1984], mod 66 NY2d 698 [certified class of 39 bank employees]; Pajaczek v CEMA Constr. Corp., 18 Misc 3d 1140[A], 2008 NY Slip Op 50386[U], *3 [2008] [“Here, the numerosity requirement has been satisfied with forty class members. The class, as defined, is narrowly defined to avoid being over inclusive, but large enough that joinder is not practicable”]; Galdamez v Biordi Constr. Corp., 13 Misc 3d 1224[A], 2006 NY Slip Op 51969[U], *2 [2006], quoting Dornberger v Metropolitan Life Ins. Co., 182 FRD 72, 77 [1998] [“It has, however, been held that ‘the threshold for impracticability of joinder seems to be around forty’ “]; see also Philadelphia Elec. Co. v Anaconda Am. Brass Co., 43 FRD 452 [1968] [class of 25 members certified]; Bernstein v American Family Ins. Co., 2005 WL 1613776, *2 [Ill Cir Ct 2005] [“If the class has more than forty people in it, numerosity is satisfied; if the class has less than twenty-five people in it, numerosity is probably lacking, if the class has between twenty-five and forty, there is no automatic rule and other factors . . . become relevant”]).

Common Questions of Law or Fact

CPLR 901 (a) (2) provides that there must be “questions of law or fact common to the class which predominate over any questions affecting only individual members.” Since the enactment of CPLR article 9 in 1975, there has been some reluctance on the part of New York courts to certify some types of class actions, e.g., (1) physical injury and property damage mass tort class actions (see Catalano v Heraeus Kulzer, Inc., 305 AD2d 356 [2003]; Lieberman v 293 Mediterranean Mkt. Corp., 303 AD2d 560 [2003]; Aprea v Hazeltine Corp., 247 AD2d 564 [1998]; cf. Osarczuk v Associated Univs., Inc., 36 AD3d 872 [2007]; Fleming v Barnwell Nursing Home & Health Facilities, 309 AD2d 1132 [2003]; Godwin Realty Assoc. v CATV Enters., 275 AD2d 269 [2000]; Matter of Arroyo v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51606[U] [2006]; Cunningham v{**59 AD3d at 139} American Home Prods. Corp., NYLJ, Sept. 21, 1999, at 26, col 5), (2) class actions challenging governmental operations (see Mahoney v Pataki, 98 NY2d 45 [2002]; Jamie B. v Hernandez, 274 AD2d 335 [2000]; Davis v Croft, 237 AD2d 163 [1997]; cf. New York City Coalition to End Lead Poisoning v Giuliani, 245 AD2d 49 [1997]; Chalfin v Sabol, 247 AD2d 309 [1998]; Yusuf v City of New York, 309 AD2d 721 [2003]; Matter of Holcomb v O’Rourke, 255 AD2d 383 [1998]; Watts v Wing, 308 AD2d 391 [2003]), and (3) class actions seeking a penalty or minimum recovery, which are prohibited by CPLR 901 (b), including class actions commenced under General Business Law § 340 (the Donnelly Antitrust Act) (see Sperry v Crompton Corp., 8 NY3d 204 [2007]) and the Federal Telephone Consumer Protection Act of 1991 (47 USC § 227) (see e.g. J. A. Weitzman, Inc. v Lerner, Cumbo & Assoc., Inc., 46 AD3d 755 [2007]; Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737 [2006]; Rudgayzer & Gratt v Cape Canaveral Tour & Travel, Inc., 22 AD3d 148 [2005]). As [*7]to the third category of actions, however, if only actual damages are sought, a court may certify a class in actions asserting a violation of General Business Law § 349 (see e.g., Cox v Microsoft Corp., 8 AD3d 39, 40 [2004]; Ridge Meadows Homeowners’ Assn. v Tara Dev. Co., 242 AD2d 947 [1997]; Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d 604, 606 [1987]; Lawlor v Cablevision Sys. Corp., 15 Misc 3d 1111[A], 2007 NY Slip Op 50580[U] [2007]) and the Federal Telephone Consumer Protection Act of 1991 (see e.g. J. A. Weitzman, Inc. v Lerner, Cumbo & Assoc., Inc., 46 AD3d 755, 756 [2007]). Nonetheless, the courts have uniformly certified breach of contract class actions, notwithstanding differing individual damages (see discussion below on damages within the context of the requirements of CPLR 901 [a] [2]), where, as here, there is uniformity in contractual agreements and/or statutorily imposed obligations (see Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d 747, 748 [2007]; Wilder v May Dept. Stores Co., 23 AD3d 646, 649 [2005]; Jacobs v Macy’s E., Inc., 17 AD3d 318, 320 [2005]; Cherry v Resource Am., Inc., 15 AD3d 1013 [2005]; Freeman v Great Lakes Energy Partners, L.L.C., 12 AD3d 1170, 1171 [2004]; Englade v HarperCollins Publs., 289 AD2d 159, 160 [2001]; Broder v MBNA Corp., 281 AD2d 369, 371 [2001]; Colbert v Rank Am., 295 AD2d 302 [2002]; Makastchian v Oxford Health Plans, 270 AD2d 25, 26 [2000]; Liechtung v Tower Air, 269 AD2d at 364; Taylor v American Bankers Ins. Group, 267 AD2d 178 [1999]; Hoerger v Board of Educ. of Great Neck Union{**59 AD3d at 140} Free School Dist., 98 AD2d 274, 283 [1983]; Gross v Ticketmaster, 5 Misc 3d 1005[A], 2004 NY Slip Op 51199[U] [2004]; Amalfitano v Sprint Corp., 4 Misc 3d 1027[A], 2004 NY Slip Op 51076[U] [2004]; Gilman v Merrill Lynch, Pierce, Fenner & Smith, 93 Misc 2d 941, 944 [1978]; Guadagno v Diamond Tours & Travel, 89 Misc 2d 697, 699 [1976]; Feldman v Quick Quality Rests., Inc., NYLJ, July 22, 1983, at 12, col 5).

Predominance of Common Questions

This Court held, in Friar v Vanguard Holding Corp. (78 AD2d at 97), that the determination of whether there is a common predominating issue of fact or law should be based on “whether the use of a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated” (internal quotation marks omitted).

GEICO contends that the following individual issues predominate over any common questions of law or fact: (1) whether GEICO had individual defenses to the various claims of putative class members, based on the timeliness of its coverage determinations or lack of coverage in the first instance, (2) whether the DME claims arose from a fraudulent accident, (3) whether the DME class member can prove its “documented costs,” and (4) individual damages.

The Supreme Court found that “the timeliness of GEICO’s denial of all or part of a class member’s claim must be considered in order to determine whether defenses other than lack of coverage can be raised.” (12 Misc 3d 1185[A], 2006 NY Slip Op 51446[U], *2 [2006].) However, Globe contends that GEICO is precluded from raising any affirmative defenses because it failed to do so within the statutory time period. Also, Globe argues that GEICO waived any lack of coverage claim because GEICO never raised the claim in its answer or counterclaims, and, in any event, the claim is based on unsupported conclusions and speculations. GEICO counters that all defenses relating to lack of coverage are not subject to the waiver rule.

Recently, the Court of Appeals reviewed the fundamental principles embodied in the No-Fault Law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). In that case, the Court addressed whether the plaintiff’s failure to offer a validly-executed assignment equated to a “lack of coverage” defense which is not subject to the “30-day rule” (id. at 317).{**59 AD3d at 141}

The Court stated:

“[A] carrier that fails to deny a claim within the 30-day period is generally precluded from asserting a defense against payment of the claim. This Court has recognized a narrow exception to this preclusion remedy for situations where an insurance company raises a defense for lack of coverage. In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the [*8]insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed” (id. at 318 [citations and internal quotation marks omitted]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).

The majority in Hospital for Joint Diseases rejected the insurer’s argument that any deficiency of the assignment implicated a lack of coverage defense warranting exemption from the preclusion rule. The Court reiterated that the “tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 320).

Similarly, this Court, in Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277 [2007], affd 10 NY3d 556 [2008]), addressed the preclusion rule and the lack of coverage exception. In Fair Price, the insurer failed to comply with the 30-day rule and attempted to equate a “failure to furnish services” (id. at 284) defense with the lack of coverage defense. This Court found that the defense was precluded because “[t]he defendant’s allegation, i.e., that the plaintiff billed for supplies it never furnished, is more akin to a claim of overbilling (albeit an extreme form thereof)” (id. at 283). The Court stated that while the insurer “was entitled to contest the plaintiff’s claim as fraudulent, it was required to do so within the rules of the no-fault system” (id. at 286).

Thus, contrary to GEICO’s contention, it follows that, in the instant case, GEICO would not be able to present a defense based on fraudulent billing or the inability of the class members{**59 AD3d at 142} to establish “documented costs.” In the proposed class action it is clear that the factor common to all potential class members is that the DME claims were denied because GEICO found them to be in excess of the industry average. As this Court and the Court of Appeals have made clear, overbilling and invoice recycling do not give rise to a lack of coverage defense. GEICO’s failure to claim the fraud defenses within the required 30-day period thus precludes it from raising it in the class action (see e.g. Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]).

Globe correctly contends that the potential for different individual damages claims is not a valid reason for denying class action status, because damages are easily calculated based on the information contained in the denial-of-claim forms. GEICO argues that the calculation of damages is not subject to a simple formula, and that the trier of fact will have to determine if each claim is excessive or if it meets 150% of documented costs. Contrary to GEICO’s assertions, the calculation of individual damages within a breach of contract class action is not dispositive of the issue of class certification, and is clearly manageable in the instant controversy (see Englade v HarperCollins Publs., 289 AD2d 159, 160 [2001] [“That individual authors may have different levels of damages does not defeat class certification”]; Broder v MBNA Corp., 281 AD2d 369, 371 [2001] [“particular damages of each individual class member can be easily computed”]; Godwin Realty Assoc. v CATV Enters., 275 AD2d 269, 270 [2000] [“To the extent that there may be differences among the class members as to the degree in which they were damaged, the court may try the class aspects first and have the individual damage claims heard by a Special Master”]; see also Weinberg v Hertz Corp., 116 AD2d 1, 6-7 [1986], affd 69 NY2d 979 [1987]; Lamarca v Great Atl. & Pac. Tea Co., Inc., 16 Misc 3d 1115[A], 2007 NY Slip Op 51424[U], *3 [2007], affd 55 AD3d 487 [2008]; Matter of Arroyo v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51606[U], *4 [2006]; Cox v Microsoft Corp., 10 Misc 3d 1055[A], 2005 NY Slip Op 51968[U], *5 [2005]; Matter of Coordinated Tit. Ins. Cases, 2 Misc 3d 1007[A], 2004 NY Slip Op 50171[U] [2004]; Gilman v Merrill Lynch, Pierce, Fenner & Smith, 93 Misc 2d 941, 944 [1978]; Guadagno v Diamond Tours & Travel, 89 Misc 2d 697, 699 [1976]).

Establishing an Individual Class Member’s Prima Facie Case [*9]

Upon reargument, the Supreme Court, although adhering to its initial determination, nonetheless did so despite rejecting its{**59 AD3d at 143} initial conclusion that each DME transaction must be examined separately to determine whether each individual class member has a prima facie case. Rather, the court found that each potential class member would not have to set forth a prima facie case proving facts, such as “documented costs,” or providing invoices or cancelled checks, but that class certification was still not warranted even if such a standard were applied.

With respect to this issue, the Supreme Court properly found, upon reargument, that a prima facie case can be easily made out by the class members and that proof of documented costs is not a requirement (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004] [“plaintiff hospitals made prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue”]; King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 770 [2004] [“to establish a prima facie case, a plaintiff medical supplier must submit proof that it timely transmitted its claim for no-fault benefits, that the defendant insurer received the claim but failed to pay or validly deny the claim within the permissible 30 days or to request verification”]). This is true, given that GEICO did not seek verification of the documented costs for the invoices submitted (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 320 [“(e)ven assuming that (assignment of benefits is a necessary component of the hospital’s prima facie case) (the) form stating that the patient’s signature is ‘on file’ satisfies that burden where the carrier does not timely take action to verify the existence of a valid assignment”]).

Typicality

CPLR 901 (a) (3) provides that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Typical claims are those that arise from the same facts and circumstances as the claims of the class members (see Ackerman v Price Waterhouse, 252 AD2d at 201 [claims “arose out of the same course of conduct and are based on the same theories as the other class members, they are plainly typical of the entire class”]; Pruitt v Rockefeller Ctr. Props., 167 AD2d 14, 22 [1991]; Friar v Vanguard Holding Corp., 78 AD2d at 99; Galdamez v Biordi Constr. Corp., 13 Misc 3d 1224[A], 2006 NY Slip Op 51969[U] [2006]; Cox v Microsoft Corp., 10 Misc 3d 1055[A], 2005 NY Slip Op 51968[U], *2 [2005]; Fiala v Metropolitan Life Ins. Co., NYLJ, June 2, 2006, at 22, col 1, 2006 NY Slip Op{**59 AD3d at 144} 30068[U] [2006]). Typicality can overlap with the predominance of common questions of law or fact (see CPLR 901 [a] [2]) and the adequacy of representation (see CPLR 901 [a] [4]; Matter of Coordinated Tit. Ins. Cases, 2 Misc 3d 1007[A], 2004 NY Slip Op 50171[U], *12 [2004]; 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 901.24).

Adequacy of Representation

The three essential factors to consider in determining adequacy of representation are potential conflicts of interest between the representative and the class members, personal characteristics of the proposed class representative (e.g. familiarity with the lawsuit and his or her financial resources), and the quality of the class counsel (see generally Ackerman v Price Waterhouse, 252 AD2d 179 [1998]; Pruitt v Rockefeller Ctr. Props., 167 AD2d at 25-26; Matter of Coordinated Tit. Ins. Cases, 2 Misc 3d 1007[A], 2004 NY Slip Op 50171[U], *12 [2004]).

Adequacy of Class Counsel

In order to be found adequate in representing the interests of the class, class counsel should have some experience in prosecuting class actions (see Galdamez v Biordi Constr. Corp., 13 Misc 3d 1224[A], 2006 NY Slip Op 51969[U], *4 [2006]; Matter of Arroyo v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51606[U], *6 [2006]; Cox v Microsoft Corp., 10 Misc 3d 1055[A], 2005 NY Slip Op 51968[U], *3 [2005]; Fiala v Metropolitan Life Ins. Co., NYLJ, June 2, 2006, at 22, col 1, 2006 NY Slip Op 30068[U] [2006]). There is no question that Globe’s counsel is highly competent in prosecuting class actions.

[*10]Adequacy of Class Representative

However, Francois, the owner of Globe, was properly rejected by the Supreme Court as an adequate representative for the class. Although Globe attempts to couch Francois’s problems in terms of “amorphous and generalized suppositions,” it is clear that Francois was charged with insurance fraud for attempting to stage accidents and thereafter bill insurance companies. While he may have only pleaded guilty to disorderly conduct, he displayed his attempt to put his interest above others by invoking his Fifth Amendment rights at his deposition, although he later withdrew his invocation of the Fifth Amendment in a subsequently-filed reply affidavit. Moreover, there was adequate evidence that Francois was engaged in recycling invoices. In addition, Francois and the class are subject to a class action{**59 AD3d at 145} counterclaim which may or may not be meritorious.^[FN4] In any event, Francois’s attempt to defend himself against any such counterclaim by GEICO would preoccupy him and detract from his representation of the class.

Therefore, Globe failed to show that it is an adequate representative of the class. “Other [appellate courts] emphasize, as do we, the challenge presented by a defense unique to a class representative—the representative’s interests might not be aligned with those of the class, and the representative might devote time and effort to the defense at the expense of issues that are common and controlling for the class” (Beck v Maximus, Inc., 457 F3d 291, 297 [2006]). In other words, a class should not be certified if Globe is the class representative, as “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it” (Hanon v Dataproducts Corp., 976 F2d 497, 508 [1992] [citations omitted]; see Koos v First Nat. Bank of Peoria, 496 F2d 1162, 1165 [1974]; Folding Cartons, Inc. v America Can Co., 79 FRD 698 [1978]; Weisman v Darneille, 78 FRD 669, 671 [1978]; Di Pace v Linsco/Private Ledger Corp., 2004 WL 1410046 [Cal Ct App 2004]; Benzing v Farmers Ins. Exch., 179 P3d 103 [Colo Ct App 2007], cert granted 2008 WL 434677, 2008 Colo LEXIS 160 [2008]; cf. Lamarca v Great Atl. & Pac. Tea Co., Inc., 16 Misc 3d 1115[A], 2007 NY Slip Op 51424[U] [2007]; Galdamez v Biordi Constr. Corp., 13 Misc 3d 1224[A], 2006 NY Slip Op 51969[U] [2006]).

Superiority

CPLR 901 (a) (5) provides that a class may be certified only if “a class action is superior to other available methods for the{**59 AD3d at 146} fair and efficient adjudication of the controversy.” The No-Fault Law provides claimants with the option of commencing a plenary action or submitting the dispute to arbitration (see Insurance Law § 5106 [b]). In addition, the No-Fault Law provides that the claimant may recover penalty interest at a rate of 24% (see Insurance Law § 5106 [a]), a remedy [*11]not available in a class action. However, the availability of an arbitration alternative does not mean such a proceeding is superior to a class action which, through the aggregation of many similar claims, provides an incentive to the legal profession to expend the resources necessary to fully litigate often complex cases such as the instant matter, including the pursuit of this very appeal. The “very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights” (Amchem Products, Inc. v Windsor, 521 US 591, 617 [1997]; see Pruitt v Rockefeller Ctr. Props., 167 AD2d at 21; Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d 604, 607-608 [1987]; Yollin v Holland Am. Cruises, 97 AD2d 720, 721 [1983]; Friar v Vanguard Holding Corp., 78 AD2d at 98-99; Matter of Arroyo v State of New York, 12 Misc 3d 1197[A], 2006 NY Slip Op 51606[U], *6 [2006]; see also Bell v Superior Ct., 69 Cal Rptr 3d 328, 349 [Ct App 2007]). In addition, should individual class members wish to pursue arbitration, and thereby recover statutory penalties unavailable in a class action, they may do so by opting out of the class sought to be certified (see Cox v Microsoft Corp., 8 AD3d at 40; Ridge Meadows Homeowners’ Assn. v Tara Dev. Co., 242 AD2d 947, 947 [1997]; Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d at 606).

Moreover, as with the requirements of CPLR 901 (a) (2), referable to the issues of liability and damages calculations, the prosecution of this proposed class action is fairly straightforward and quite manageable. Thus, although the motion to certify a class was properly denied because of Globe’s inadequacy as a class representative, upon reargument, the denial of the motion should have been without prejudice to renewal.

Accordingly, the appeal from the order entered July 21, 2006, is dismissed, as that order was superseded by the order entered November 8, 2006, made upon reargument. The order entered November 8, 2006, is reversed insofar as appealed from, on the facts and in the exercise of discretion, upon reargument, so much of the order entered July 21, 2006, as denied that branch of the plaintiff’s motion which was to certify a class action pursuant{**59 AD3d at 147} to CPLR article 9 is vacated, and that branch of the plaintiff’s motion is denied without prejudice to renewal.

Spolzino, J.P., Florio and Miller, JJ., concur.

Ordered that the appeal from the order entered July 21, 2006, is dismissed, as that order was superseded by the order entered November 8, 2006, made upon reargument; and it is further,

Ordered that the order entered November 8, 2006, is reversed insofar as appealed from, on the facts and in the exercise of discretion, upon reargument, so much of the order entered July 21, 2006, as denied that branch of the plaintiff’s motion which was to certify a class action pursuant to CPLR article 9 is vacated, and that branch of the plaintiff’s motion is denied without prejudice to renewal; and it is further,

Ordered that one bill of costs is awarded to the appellant.

Footnotes

Footnote 1: Regulation 83 was amended, effective October 6, 2004, and now states that where there is no specific schedule for reimbursement, the insurer must pay the “lesser of: (1) the acquisition cost . . . to the provider plus 50 percent; or (2) the usual and customary price charged to the general public” (11 NYCRR Appendix 17-C, part F [a]). All the parties agree that the former Part E governs in this case.

Footnote 2: In his affidavit sworn to April 21, 2006, Christopher J. Jones, a “Detective with the NYPD’s Fraudulent Accident Investigation Squad . . . for the past 2½ years,” stated that “[f]raud by DME suppliers against no-fault insurance companies is widespread. It has been a principal focus of our Squad’s investigation . . . On or about June 1, 2005, Mr. Francois was arrested as the result of an undercover investigation in which I was involved. He was arrested for offering to pay an undercover agent to stage a phony automobile accident and refer the alleged ‘victims’ to a medical clinic. The specific charges were insurance fraud in the third degree and conspiracy in the fifth degree . . . Subsequently, Mr. Francois entered into a plea agreement, pleading guilty to disorderly conduct.”

Footnote 3: For other examples of insurer “repricing” of medical bills, see Reyher v State Farm Mut. Auto. Ins. Co. (171 P3d 1263 [Colo Ct App 2007]) and LaBerenz v American Family Mut. Ins. Co. (181 P3d 328 [Colo Ct App 2007], cert denied 2008 WL 1701094, 2008 Colo LEXIS 414 [Sup Ct 2008]).

Footnote 4: Counterclaims against the class representative and/or the members of the class may be asserted to discourage class participation and render the named class representatives inadequate by creating a seemingly unique defense. The courts must carefully examine the merits and purpose of class action counterclaims (see Van Gemert v Boeing Co., 590 F2d 433 [1978], affd 444 US 472 [1980] [absent class members who are not parties are not subject to counterclaims under Federal Rules of Civil Procedure rule 13 since such counterclaims may be used to encourage class members to opt out of the class]; Equity Residential Props. Trust v Yates, 910 So 2d 401, 404 [Fla Ct App 2005] [“we find no error in the trial court’s denial of the landlord’s motion to bring a class-wide counterclaim”]; Purcell & Wardrope Chartered v Hertz Corp., 175 Ill App 3d 1069, 530 NE2d 994 [1988] [dismissing counterclaim against class representative for lack of evidence]; Shaver v Standard Oil Co., 89 Ohio App 3d 52, 623 NE2d 602 [1993] [assertion of counterclaim against named plaintiff does not destroy ability of representative to comply with typicality requirements; the counterclaim should be treated as a request for a setoff against the named plaintiff’s individual claim]; see also 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 901.19 [2d ed]).

—[*1] Moira A. Doherty, Uniondale, N.Y. (Janice P. Rosen of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated December 3, 2007, as granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the first cause of action is denied.

The plaintiff, as assignee of two insureds under policies issued by the defendant, commenced this action to recover no-fault medical payments. The plaintiff moved for summary judgment on the complaint, arguing that the defendant had failed to timely pay or deny the claim of either insured under the relevant no-fault regulations (see 11 NYCRR 65-1.1 et seq.). The defendant thereafter paid the claim of Edward Caruso (the subject of the second cause of action) and made partial payment on the claim of Josh Logan (the subject of the first cause of action). In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action regarding Logan’s claim. We reverse the order insofar as appealed from.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the [*2]first cause of action regarding Logan’s claim with evidence that the claim was neither paid nor denied within 30 days of the defendant’s receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; 11 NYCRR 65-3.8 [a] [1], [c]). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on Logan’s alleged intoxication at the time of the accident by issuance of a denial of coverage on that ground within 30 days of the receipt of additional verification it requested concerning the claim (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; 11 NYCRR 65-3.5; 11 NYCRR 65-3.8 [e], [g]). Thus, that branch of the plaintiff’s motion which was for summary judgment on the first cause of action should have been denied.

The plaintiff’s remaining contention is without merit. Ritter, J.P., Florio, Miller and Carni, JJ., concur.

—[*1] Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellant.

Marjorie E. Bornes, New York, for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 1, 2007, which granted plaintiff insurer’s motion for summary judgment declaring that it has no duty to defend and indemnify defendant insureds in an underlying personal injury action brought by defendant-appellant, and denied appellant’s cross motion for summary judgment directing plaintiff to satisfy the judgment in the underlying action, affirmed, without costs.

Although appellant had provided plaintiff with information about the accident shortly after it occurred, in compliance with the policy, she failed to give plaintiff notice of her suit against its insureds until 14 months after the suit was commenced and she had obtained an order for a default judgment. Plaintiff having thus lost its right to appear and interpose an answer, its disclaimer of coverage was proper (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v B.O. Astra Mgt. Corp., 39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Concur—Tom, J.P., Nardelli, Sweeny and DeGrasse, JJ.

McGuire, J., concurs in a separate memorandum as follows: I agree with the majority’s implicit conclusion that plaintiff insurer American Transit Insurance Co. (ATIC) was required to show that it was prejudiced by the failure of defendant Klausner, the plaintiff in the underlying personal injury action, to provide timely notice to ATIC of the action she had commenced against ATIC’s insured. I write separately because I believe we should explain that conclusion, especially in light of decisions by this Court and the Second Department that appear to support a different conclusion.

Although ATIC did not receive timely notice of the action from Klausner, it did receive [*2]timely notice of the accident, as is evinced by the letter it sent to Klausner less than two months after the accident requesting that she complete a form providing information about the accident and her injuries. Indeed, ATIC conceded in its reply papers that it had received timely notice of the accident. Moreover, that letter addresses Klausner as “Claimant.” According to Klausner’s submission opposing ATIC’s motion for summary judgment, she completed and returned the form, and her attorney thereafter provided medical reports and records to ATIC and engaged in settlement discussions with ATIC. ATIC did not dispute these assertions in its reply papers.

In Argo Corp. v Greater N.Y. Mut. Ins. Co. (4 NY3d 332, 340 [2005]), the Court of Appeals held that a commercial liability insurer “was not required to show prejudice before declining coverage for late notice of lawsuit.” The Court stressed in its opinion, however, that the carrier also had not received timely notice of claim (id. at 339-340). As the Court of Appeals noted in Argo, “[i]n Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), we again departed from the general no-prejudice rule and held that the carrier must show prejudice before disclaiming based on late notice of a lawsuit in the SUM [supplementary underinsured motorist] context” (4 NY3d at 339). In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468 [2005]), the plaintiff in a declaratory judgment action against her insurance carrier “did not submit her notice of SUM claim as soon as practicable” (id. at 474). Although the notice of claim was untimely, the Court accepted the plaintiff’s argument that the Court should “relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident” (id.).

Because this case is not one involving SUM coverage, Klausner cannot maintain that Matter of Brandon and Rekemeyer require relaxation of the no-prejudice rule. Indeed, Rekemeyer arguably supports the opposite conclusion: timely notice of the accident should not lead to relaxation of the no-prejudice rule because this is not a SUM case. Moreover, the proposition that ATIC was required to show that it was prejudiced by Klausner’s failure to give timely notice of her suit against ATIC’s insured is at least called into question by our recent decision in 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co. (54 AD3d 593 [2008]). In 1700 Broadway, the insured did not give notice to the commercial general liability insurer of the underlying personal injury action against the insured until eight months after the insured was served with the summons and complaint. This Court held that the unexplained delay “constituted late notice as a matter of law” and that the insurer “was not required to demonstrate prejudice by reason of the delay in order to disclaim coverage” (id. at 593-594). Although nothing in this Court’s opinion suggests that the insurer had received timely notice either of the occurrence or of the claim, nothing in the opinion suggests that whether either notice had been given in timely fashion was relevant to the holding. Moreover, the Second Department has held that an insurer validly disclaimed coverage on the ground of untimely notice of the underlying personal injury action against its insured even though the insurer had received written notice of the accident one month after the accident and one of the plaintiffs in the personal injury action had sought no-fault benefits from the insurer not later than 3½ months after the accident (Matter of GEICO Co. v Wingo, 36 AD3d 908 [2007]).

As the majority indicates, this appeal is controlled by our decision in American Tr. Ins. Co. v B.O. Astra Mgt. Corp. (39 AD3d 432 [2007], lv denied 9 NY3d 802 [2007]). Consistent with the emphasis the Court of Appeals placed in Argo on the fact that the carrier had not received timely notice of claim, this Court held that “[h]aving received timely notice of claim, plaintiff insurer was not entitled to disclaim coverage based on untimely notice of the [*3]claimant’s commencement of litigation unless it was prejudiced by the late notice” (id. at 432). This case is a fortiori to B.O. Astra, because ATIC received both timely notice of the accident and timely notice of Klausner’s claim.

The majority’s analysis premises the propriety of the disclaimer of coverage on ATIC “having . . . lost its right to appear and interpose an answer.” For this reason, and because the majority goes on to cite B.O. Astra, it appears that the majority has concluded, albeit implicitly, that ATIC was required to show prejudice. As stated above, I agree that B.O. Astra requires that conclusion. Unquestionably, moreover, ATIC was prejudiced by Klausner’s failure to provide notice until after she had obtained a default judgment. As Justice Lehner observed in his written decision granting ATIC’s motion for summary judgment, although ATIC “could . . . have applied to vacate the default . . . on the part of its insured, it is far from clear whether such a motion would be granted, and it could be prejudicial to [ATIC’s] rights to require it to appear for its insured under such circumstances.” I would add only—I doubt Justice Lehner meant to suggest otherwise—that it is prejudicial to ATIC’s rights to require it to shoulder the burden of moving to vacate the default.

Finally, there is no merit to Klausner’s argument that ATIC’s disclaimer is really a disclaimer for failure to cooperate. Although an insurer can disclaim on account of its insured’s failure to cooperate in the handling of a claim, ATIC disclaimed on the distinct ground of lack of timely notice of the underlying action. The requirement of timely notice of that action is a condition precedent to ATIC’s liability (American Tr. Ins. Co. v Sartor, 3 NY3d 71, 76 [2004]), and Klausner failed to exercise her independent right to fulfill this policy obligation (id. [“the Legislature has given an injured party the statutory right to fulfill this policy obligation (of timely notice) by allowing any necessary notification to be issued by the claimant”]).

[*1]

Civil Court of the City of New York, Kings County, October 31, 2008

APPEARANCES OF COUNSEL

McDonnell & Associates for defendant. Gary Tsirelman, Brooklyn, for plaintiff.

{**22 Misc 3d at 979} OPINION OF THE COURT

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5102 (a) (1) of the Insurance Law and New York State Insurance Department Regulations (11 NYCRR) § 65-1.1 et seq. for medical services rendered.

Defendant moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint on the grounds that the plaintiff’s assignor failed to appear for scheduled independent medical examinations (IMEs), or in the alternative, partial summary judgment on the grounds that the denials are timely. Plaintiff opposes the motion on the grounds that the defendant has failed to substantiate any defenses or establish that it properly denied plaintiff’s claims.

After careful review of the moving papers, supporting documents and opposition thereto, the court finds as follows:

Defendant argues that the assignor, Jose Lora, failed to appear for scheduled independent [*2]medical examinations, which is a condition precedent to coverage under the insurance policy and no-fault regulations. In support of its argument, defendant annexes as exhibit “I” to its moving papers a copy of the insurance policy. The policy states in part: “3. Medical Reports. The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require.” (Emphasis added.)

Plaintiff argues that the policy requires the assignor, Jose Lora, to appear before a physician, which pursuant to Education Law, article 131, § 6522 is defined as “[o]nly a person licensed or otherwise authorized under the article shall practice medicine.” Therefore, the defendant’s insurance policy, which plaintiff reads to be clear and unambiguous, requires that the assignor submit to an examination by a physician only, and not any other health care provider. Plaintiff contends that as a result of the IME being scheduled before a psychologist, as opposed{**22 Misc 3d at 980} to a physician, the assignor was not required to attend, and no condition precedent was violated. Plaintiff further argues that any ambiguity with the use of the term “physician” must be construed against the insurer, the drafter of the policy.

The argument raised by plaintiff appears to be one of first impression. This court has researched the issue, having read and written many no-fault decisions, and did not find a case addressing the issue of whether a policy which states “physician” means that any other health care provider is excluded, and only a physician can conduct the independent medical examination of an eligible injured person (EIP).

This court answers in the negative.

In the case before this court, the insurance company sent verification requesting that the injured party appear before an independent psychologist. The court finds that although the policy states physician, the term itself is not ambiguous where it would or should allow the EIP to circumvent the requirement of an independent examination, to determine whether the services rendered were medically necessary. The assignor was seen by a psychologist and therefore, there is no reason why a verification which requests that he appear before an independent psychologist, should not be held as a valid request when the policy states “physician.”

The general provisions of Workers’ Compensation Rules and Regulations (12 NYCRR) § 300.2 (b) (5), which address independent medical examination, examiners, and entities, sets forth the following: “Section 300.2 . . . (5) “Independent medical examiner means a physician, surgeon, podiatrist, chiropractor or psychologist who is authorized to conduct independent medical examinations as defined in paragraph (4) of this subdivision.”

The fee schedules are determined by the Workers’ Compensation Law, and the services rendered by a provider are determined under the New York no-fault fee schedule. The workers’ compensation fee schedules were adopted by the Superintendent of Insurance for use by those [*3]making and processing claims for no-fault benefits.

If there is an issue as to the fees charged by the provider, which in this case is a psychologist, a hearing would be necessary to determine how much should have been billed. The court would look to the workers’ compensation fee schedule, and the fees applicable to a psychologist, not a physician.{**22 Misc 3d at 981} Therefore, this court finds that the EIP, Jose Lora, was required to appear for the scheduled IME.

In addition, this court finds plaintiff’s argument that Dr. Yakov Burstein is not qualified to state whether EIP, Jose Lora, appeared for an IME without merit. The suggestion that a doctor is unaware of or unqualified to assert which patient or patients are scheduled to appear at a scheduled date and or time in his office, because he is without “personal knowledge,” is presumptuous.

Next, this court will address the issue of the timeliness of the verification.

The claim for no-fault benefits begins when an injured party provides notice to the insurer within 30 days after the date of the accident. (See 11 NYCRR 65-2.4 [b].) The injured party is required to submit an application for no-fault benefits, and the written proof of claim is submitted within 45 days after the date services are rendered.

Within 10 business days after receipt of the completed no-fault application, the insurer must forward verification forms for health care or hospital treatment to the injured party or that party’s assignee. After receipt of the completed verification, the insurer may seek additional verification or further proof of claim from the injured party or that party’s assignee within 15 business days thereof. (See 11 NYCRR 65-3.5 [b].) For example, the insurer may seek an independent medical examination of the injured party which must be held within 30 calendar days from receipt of the initial verification form.

In the case at bar, the defendant states that it received the claim for no-fault benefits in the amount of $1,061.63 on December 29, 2005, and an additional claim for $120 on January 9, 2006. On February 17, 2006 the defendant sent a notice to the injured party scheduling an independent medical examination for March 1, 2006. A second notice rescheduling the IME was sent on March 29, 2006 which scheduled the IME for April 10, 2006.

Plaintiff argues that the defendant’s request for verification was untimely, and therefore the statutory prescribed 30-day period within which to issue a denial of the submitted claims was not tolled, and thus the defense of failure to attend an IME has been waived. In response to plaintiff’s argument that the insurer was required to request a verification within 15 days, the defendant argues that the amendment to the statute states as follows:{**22 Misc 3d at 982} “If the additional verification [*4]required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d].)

The time in which an insurer has to pay or deny a claim is extended only upon a proper request for verification pursuant to 11 NYCRR 65-3.5 (a). Since the defendant did not serve its verification request within 10 business days after receipt of the plaintiff’s completed application for no-fault benefits, the 30-day payment or denial period was not tolled. The initial verification request comes before the additional verification request for an independent medical examination. Section 65-3.5 (d) clearly states an IME is a request for “additional verification.” The insurer’s requests for independent medical examinations in connection with a health care provider’s claim for first-party no-fault benefits, made as an initial verification request, rather than an additional verification request, did not extend the time in which to issue a denial of the claims. Consequently, the defendant is precluded from raising the defense of lack of medical necessity, and/or failure to attend a scheduled IME.

Accordingly, defendant’s motion for summary judgment is denied, and the court finds that summary judgment is warranted in favor of plaintiff in the amount of $1,181.63 (the amount of the two claims), with statutory interest, costs and attorney’s fees.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), dated June 29, 2007, deemed from a judgment of said court entered November 8, 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 served a notice to admit upon defendant and defendant served a response. At trial, plaintiff, without calling any witnesses, contended that it made a prima facie showing because its notice to admit sought admission of all facts relevant to its prima facie case and defendant’s objections lacked merit. Plaintiff’s notice to admit, to which the claim form at issue was annexed, and defendant’s response were admitted into evidence, and the court heard oral arguments. Defendant did not call any witnesses, but argued that plaintiff failed to make a prima facie showing. The court held, inter alia, that plaintiff’s notice to admit failed to establish a prima facie case. Judgment was entered dismissing the complaint, and this appeal by plaintiff ensued.

“A matter deemed admitted pursuant to a notice to admit . . . is still subject to all pertinent objections to admissibility which may be interposed at the trial’ (CPLR 3123 [b]), and it is not necessarily of such probative value as to relieve a party of the necessity of establishing its right to ultimate relief upon the trial” (Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). In Bajaj, this court held that where a party seeks to satisfy its burden of proof at trial by reference to a document, testimony is required to establish the admissibility of the document. In the instant case, as in Bajaj, plaintiff, by not calling a witness, failed to lay a foundation to demonstrate that its claim form, a necessary part of a provider’s prima facie case [*2](A.M. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists 2005]), was admissible as a business record (see Art of Healing Medicine, P.C. v Traveler’s Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008]; Bajaj, 18 Misc 3d 25; 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.

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

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 04, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 25, 2007. The order denied plaintiff’s motion for leave to enter a judgment after settlement, pursuant to CPLR 5003-a, and for leave to include in the judgment a provision for additional interest, attorney’s fees and costs.

Order affirmed without costs.

In November of 2003, plaintiff provider commenced this action to recover assigned first-party no-fault benefits in the sum of $1,879, plus statutory interest and attorney’s fees. The parties entered into a stipulation of settlement in November of 2006. In August of 2007, plaintiff moved, pursuant to CPLR 5003-a, for an order granting it leave to enter a judgment after settlement, and providing that the judgment include provisions for additional interest and costs. The court denied the unopposed motion, and this appeal by plaintiff ensued.

CPLR 5003-a, enacted to encourage the prompt payment of damages in settled actions, authorizes a settling plaintiff to enter judgment against a settling defendant who fails to pay all sums as required by the statute (see Cunha v Shapiro, 42 AD3d 95 [2007]). Insofar as is relevant to the instant case, CPLR 5003-a (a) provides that the settling defendant “shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (emphasis added). The term “tender,” as used in the statute, is defined as meaning “either to personally deliver or to mail, by registered or certified mail, return receipt requested” (CPLR 5003-a [g]). Should the settling defendant fail to make prompt payment of all sums due, the unpaid plaintiff “may enter judgment, without further notice, against such settling defendant who has not paid” (CPLR 5003-a [e]). [*2]

In order to avail itself of the enforcement mechanism of CPLR 5003-a, an unpaid settling plaintiff must adhere to the requirements of the statute by tendering a general release and a stipulation of discontinuance and by waiting 21 days following such tender (see Cunha v Shapiro, 42 AD3d 95 [2007]; see also Dobler Chevrolet v Board of Assessors, 2001 NY Slip Op 50013[U] [Sup Ct, Nassau County 2002]). In the instant case, plaintiff’s submissions in support of its motion were insufficient to prove its tender to defendant of the release and stipulation of discontinuance. Accordingly, the order denying plaintiff’s motion is affirmed, albeit on different grounds. We pass on no other issue.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 03, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered September 19, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the assignor’s failure to appear for independent medical examinations (IMEs). In opposition, plaintiff argued only that defendant failed to establish that the IMEs were scheduled to occur at an address at which the doctor maintained an office. The court below granted defendant’s motion for summary judgment dismissing the complaint, and the instant appeal by plaintiff ensued.

Since plaintiff raised no issue in the court below, or on appeal, with respect to the timeliness of defendant’s NF-10 denial of claim forms, which denied plaintiff’s claims on the ground that plaintiff’s assignor failed to attend scheduled IMEs, we do not pass upon the propriety of the implicit determination of the court below with respect thereto. Contrary to plaintiff’s contention, the affidavit submitted by the chiropractor who was to perform an IME of plaintiff’s assignor established that the assignor failed to appear for an IME in her office, which was located at the address set forth in the IME scheduling letters (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff’s argument is unsupported by the record.

Plaintiff’s remaining contentions are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]) and, in any event, lack merit (see e.g. Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co., 15 Misc 3d 130[A], 2007 NY Slip Op 50639[U] [*2][App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 03, 2008

[*1]

Supreme Court, Appellate Term, Second Department, December 3, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Benjamin Sharav of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola (Mitchell S. Lustig of counsel), for respondent.

{**22 Misc 3d at 44} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3216, to dismiss the complaint based upon plaintiff’s failure to prosecute the action. Plaintiff opposed the motion, contending that defendant’s 90-day demand was defective and therefore a nullity because it did not contain “a caption setting forth the name of the court, the venue . . . and the index number of the action” (CPLR 2101 [c]). The court below granted the motion to dismiss, and this appeal by plaintiff ensued.

Once a 90-day demand is received by a plaintiff, the plaintiff must either comply with the demand by filing a note of issue or a notice of trial within 90 days (CPLR 3216 [c]), or must move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; Rubin v Baglio, 234 AD2d 534 [1996]). Since plaintiff failed to do either of these, it was required, in opposition to the motion to dismiss, to establish a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; Taylor v Gari, 287 AD2d 557 [2001]).

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). In addition to its failure to offer any reasonable excuse{**22 Misc 3d at 45} for the delay, plaintiff also failed to show that it had a meritorious cause of action. Accordingly, the judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.