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 (Dolores L. Waltrous, J.), entered May 3, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for a protective order and granted defendant’s cross motion to strike the complaint or, in the alternative, to compel discovery, to the extent of directing plaintiff to comply with all outstanding discovery demands and to appear for an examination before trial.

Order, insofar as appealed from, modified by providing that defendant’s cross motion is granted only to the extent of compelling plaintiff to produce the documents requested in the first, eighth through fourteenth, sixteenth and eighteenth numbered paragraphs of defendant’s demand for discovery and inspection within 60 days of the date of the order entered hereon and that, within 30 days after such production, plaintiff shall appear for an examination before trial; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served plaintiff with combined discovery demands, including a demand for discovery and inspection and a notice of examination before trial (EBT). Subsequently, plaintiff moved, inter alia, for a protective order, and defendant cross-moved to strike the complaint or, in the alternative, to compel plaintiff to appear for an EBT and to produce the documents requested in its demand for discovery and inspection. The court below denied plaintiff’s motion for a [*2]protective order and granted defendant’s cross motion to the extent of directing plaintiff to comply with all outstanding discovery demands and to appear for an EBT. This appeal by plaintiff ensued.

Since plaintiff failed to challenge the propriety of defendant’s demand for discovery and inspection within the time prescribed by CPLR 3122, it is obligated to produce the information sought therein except as to matters which are privileged or palpably improper (see Fausto v County of Nassau, 17 AD3d 520 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). In the absence of any claim of privilege, the only issue for this court’s review is whether defendant’s requests for documents in said demand were palpably improper (see Saratoga Harness Racing v Roemer, 274 AD2d 887 [2000]).

Where a discovery demand concerns matters relating to a defense which a defendant is precluded from raising, it is palpably improper, notwithstanding the fact that the plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). As defendant did not establish that it timely denied plaintiff’s claims, to the extent defendant seeks discovery in support of its defense of lack of medical necessity, discovery of such precluded matter is palpably improper (see id.).

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that an insurer may withhold payment to a medical services provider if the provider is fraudulently incorporated, without regard to whether the medical services were unnecessary or improper. In the instant case, the record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation, a defense which is not precluded (see Midborough Acupuncture, P.C. v State Farm Ins. Co., Misc 3d , 2008 NY Slip Op 28291 [App Term, 2d & 11th Jud Dists 2008]). To the extent that defendant seeks production of, inter alia, plaintiff’s certificate of incorporation, management documents, and medical licenses of plaintiff’s shareholders, such discovery is material and necessary to defendant’s contention that plaintiff is ineligible for reimbursement of no-fault benefits (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., AD3d [2d Dept, Sept. 9, 2008]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]). Accordingly, defendant is entitled to production of the documents sought in paragraphs 1, 8 through 14, 16 and 18 of defendant’s demand for discovery and inspection.

With respect to that portion of the order which directed plaintiff to appear for an EBT, plaintiff has failed to assert any viable reason for its contention that said EBT should not be held. Since defendant’s defense to this action is based upon plaintiff’s alleged ineligibility to recover reimbursement of assigned no-fault benefits (see Mallela, 4 NY3d 313), it is entitled to such EBT (see CPLR 3101 [a]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 1, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

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

On appeal, defendant contends that the affidavit by the biller employed by a third party, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. 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]). Accordingly, we do not pass upon the propriety of the determination of [*2]the court below with respect to plaintiff’s establishment of its prima facie case.

In opposition to plaintiff’s motion and in support of its cross motion seeking summary judgment dismissing the complaint as premature on the ground that plaintiff had failed to respond to its verification requests (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), defendant argued that notwithstanding the fact that it had received plaintiff’s hospital facility form (NYS Form NF-5), verification was still outstanding because it had received neither an application for motor vehicle no-fault benefits nor a completed assignment of benefits form. Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted by a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Moreover, defendant admitted having received the hospital facility form (which included an assignment) on October 6, 2005, and did not request verification of the assignment until December 23, 2005. Accordingly, defendant failed to establish that it timely requested verification with respect to the assignment (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007], supra), and consequently failed to demonstrate its entitlement to verification of the assignment (id.).

Since defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment and failed to set forth a prima facie case with respect to its cross motion for summary judgment, the court below properly granted plaintiff’s motion and denied defendant’s cross motion. The order is therefore affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 05, 2008

[*1]

Civil Court of the City of New York, Kings County, November 5, 2008

APPEARANCES OF COUNSEL

Bruno Gerbino & Soriano, LLP, Melville, for defendant. Gary Tsirelman P.C., Brooklyn, for plaintiff.

{**22 Misc 3d at 724} OPINION OF THE COURT

George J. Silver, J.

In this action to recover first-party no-fault benefits, interest and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations, defendant Utica Mutual Insurance Company moves, pursuant to CPLR 3212, for an order granting it summary judgment dismissing plaintiff Allstate Social Work and Psychological Services, PLLC’s complaint on the ground that plaintiff’s assignors failed to appear for properly scheduled independent medical examinations (hereinafter IMEs) and examinations under oath (hereinafter EUOs) and thus failed to comply with conditions precedent of the insurance policy.

Chad LaPlate, defendant’s no-fault specialist, avers that defendant’s Special Investigative Unit (hereinafter SIU) investigated the motor vehicle accident that allegedly occurred on May 23, 2003 and which gave rise to the instant claims. As a result of that investigation, defendant’s SIU determined that the alleged loss was the result of an intentional act and that material misrepresentations had been made in the presentation of the claims. Defendant thereafter assigned the claims to Hudson Valley Medical Consultants (hereinafter HVMC) for the scheduling of IMEs of plaintiff’s assignors. Jennifer Harvey, an employee of HVMC, avers that HVMC is an entity that is involved in the scheduling of IMEs on behalf of insurance companies. According to Ms. Harvey, HVMC acts as an intermediary between the insurance company and the examining physician, dentist or psychologist by scheduling IME appointments and then securing the IME report from the examining doctor. Ms. Harvey avers that the psychological IMEs of the assignors were scheduled with Moses Weksler, Ph.D., for August 27, 2003. The letters scheduling the IMEs were prepared and signed by Ms. Harvey and mailed on August 15, 2003. Ms. Harvey states that it is HVMC’s procedure to have an employee prepare and print the IME scheduling letter and the address label for each scheduled IME. The employee ensures that the address label is correct, places the scheduling letter in the envelope, affixes the address label to the envelope and applies the proper postage. The envelopes containing the scheduling letters are placed in an official postal repository on a daily basis. Helen Sickler, the office manager for Moses Weksler, Ph.D., states in her affidavit that neither assignor appeared at Dr. Weksler’s Brooklyn office on August 27, 2003 and that the assignors’ nonappearances were reported to HVMC. On August 28, 2007, Ms. Harvey{**22 Misc 3d at 725} scheduled a second IME for both assignors to be held on September 11, 2003, again at Dr. Weksler’s Brooklyn office. According to Ms. Sickler, both assignors again failed to appear at Dr. Weksler’s office. On October 9, 2003 defendant issued two denials, one for each assignor, denying plaintiff’s claims due to the failure of the assignors to appear for the two scheduled psychological IMEs.

Defendant thereafter retained the law firm of Bruno, Gerbino & Soriano, LLP to schedule and conduct EUOs of defendant’s insured, the driver of the motor vehicle and the assignors. According to defendant’s attorney, EUOs were duly scheduled for October 7, 2003, October 10, 2003, October 28, 2003 and December 23, 2003. The assignors failed to attend the EUOs and on January 29, 2004 defendant issued a second set of denials based upon the assignors’ nonappearances.

In opposition, plaintiff argues that defendant has failed to establish that the assignors violated the policy conditions by failing to appear for the psychological IMEs because, under the express unambiguous terms of the insurance contract, the assignors were only obligated to submit to a medical examination by a physician. Plaintiff contends that licensed psychologists like Dr. Weksler are not physicians as the term is defined by the Education Law, therefore the assignors’ failure to appear for the scheduled IMEs was not a violation of the insurance policy and defendant’s denial of plaintiff’s claims was improper. Plaintiff raises no issue as to the sufficiency of defendant’s proof that the IME request letters were mailed by HVMC in accordance with a standard office practice and procedure and in accordance with the time periods delineated in the no-fault regulations. Nor does plaintiff challenge the sufficiency of defendant’s proof of the assignors’ nonappearances at the IMEs.

Plaintiff further contends that the EUO scheduling letters dated September 30, 2003, October 1, 2003 and October 13, 2003 are defective on their face because they failed to inform the assignors that they would be reimbursed for any loss of earnings or reasonable transportation expenses incurred in complying with the requests. Plaintiff also argues that the December 10, 2003 EUO scheduling letter is defective because the defendant improperly scheduled the EUOs to be held in Melville, New York, which plaintiff argues was not reasonably convenient to the assignors who reside in Brooklyn. In the alternative, plaintiff argues that if the language of the December 10, 2003 EUO scheduling letter is sufficient, the letter should{**22 Misc 3d at 726} be treated as a first request for additional verification. Since defendant failed to issue a follow-up request to the December 10, 2003 scheduling letter, plaintiff contends, defendant failed to comply with the follow-up verification requirements outlined in the regulations. Finally, plaintiff informs the court that it did not cross-move for summary judgment “due to insufficient time to file the motion”^[FN1] but nevertheless requests that the court search the record and grant summary judgment in its favor.

Defendant argues in reply that this court previously denied plaintiff’s motion for summary judgment. Defendant also concedes that Dr. Weksler is not a physician as defined by the Education Law but argues that the endorsement’s definition of “medical expense” includes all professional health services, not only medical services provided by physicians. Since the legislature included medical expenses for all professional health services as part of covered basic economic loss, defendant reasons, it also intended to permit any health care provider to perform IMEs.

Analysis

“Pursuant to Insurance Law § 5103 (d), the Legislature empowered the Superintendent of Insurance to promulgate regulations establishing minimum benefit standards for policies of insurance providing coverage for the payment of first-party benefits and to set standards for the payment of first-party benefits by self-insurers. Pursuant to this authority, the Superintendent promulgated Insurance Department Regulations (11 NYCRR) § 65-1.1, which sets forth the basic form of the ‘Mandatory Personal Injury Protection Endorsement’ which must be included in every owner’s policy of liability insurance issued on a motor vehicle in this state” (Alleviation Supplies Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 790 [Civ Ct, Richmond County 2006]).

The mandatory personal injury protection endorsement (hereinafter endorsement) provides, in pertinent part, that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1 [d] [Conditions] [Proof of Claim; Medical, Work Loss, and{**22 Misc 3d at 727} Other Necessary Expenses]).^[FN2] The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). The term physician is not defined in the endorsement but the Education Law provides that “[o]nly a person licensed or otherwise authorized under this article shall practice medicine or use the title ‘physician’ ” (Education Law § 6522). Defendant concedes in its reply that a licensed psychologist such as Dr. Weksler is not a physician. The question then is may any health provider perform an IME of an eligible injured person or, as the endorsement appears to require, only a physician?

Though there appears to be no case law addressing the point, in an opinion letter dated March 12, 2004, the State Insurance Department answered the following question:

“When a No-Fault eligible person is being treated by a chiropractor and the person’s insurer has requested a medical examination (‘IME’) of that person in order to evaluate the medical necessity of the chiropractic services performed, must the medical examination be performed by a chiropractor, or may it be performed by a medical doctor?” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10.)

In holding that an “insurer’s medical examination of an eligible injured person to evaluate the medical necessity of health services provided by a chiropractor may be performed by a medical doctor, and need not be performed by a licensed chiropractor” (id.) the Insurance Department stated “[t]here is no requirement in the regulation that a claim denial must be based upon a medical examination conducted by a health provider of the same speciality area as the treating health provider” (id.). Implicit in the Insurance Department’s interpretation, which is entitled to great deference unless it is “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]), is that an independent medical examination of an eligible injured person may be performed either by a physician, as the term is defined in the Education Law and used in the endorsement, or by any other{**22 Misc 3d at 728} licensed health provider selected by or acceptable to the insurer. It is for the court or an arbitrator to “consider the qualifications of the health provider performing the IME in determining the validity of a claim denial” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health providers who could perform IMEs, thereby delaying the processing of no-fault claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The affidavits submitted by defendant are sufficient to establish that defendant’s initial IME requests, its follow-up IME requests and its denial of claim were mailed pursuant to a standard office practice and procedure, and that the assignors failed to appear for the IMEs (Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]; Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51954[U] [App Term, 2d & 11th Jud Dists 2008]). The court, therefore, need not address plaintiff’s arguments concerning the sufficiency of defendant’s EUO requests.

Accordingly, it is hereby ordered that defendant’s motion for summary judgment dismissing plaintiff’s complaint is granted.

Footnotes

Footnote 1: See attorney’s affirmation in opposition.

Footnote 2: Since the endorsement is promulgated by the Superintendent of Insurance, and is not drafted by the insurer, plaintiff’s argument that any ambiguity in the endorsement must be construed against the insurer is incorrect.

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 May 18, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that there was an issue of fact as to medical necessity. The court below denied plaintiff’s motion on the grounds that it failed to prove its prima facie entitlement to summary judgment inasmuch as plaintiff failed to prove that the claim forms were submitted to defendant and because the supporting affidavit did not establish that it was based upon the affiant’s personal knowledge of plaintiff’s standard office practices and procedures. The instant appeal by plaintiff ensued.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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]). In the instant case, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms, and the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg [*2]Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record establishes plaintiff’s prima facie entitlement to summary judgment.

Contrary to plaintiff’s contention, defendant, through the submission of the affidavit of its claims representative and the affirmed peer review, established that plaintiff’s claims were properly and timely denied based upon a lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 31, 2008

[*1]

City Court of Poughkeepsie, October 31, 2008

APPEARANCES OF COUNSEL

Spiegel, Brown, Fichera & Acard, Poughkeepsie (Michael A. Cote of counsel), for plaintiff. D’Ambrosio & D’Ambrosio, P.C., Irvington (James J. D’Ambrosio of counsel), for defendant.

{**22 Misc 3d at 229} OPINION OF THE COURT

Katherine A. Moloney, J.

The plaintiff is seeking an order to compel disclosure pursuant to CPLR 3124. Plaintiff’s motion is supported by the affirmation of Michael A. Cote, Esq., dated August 19, 2008, which alleges that the defendant has failed to disclose, despite due demand, all medical records relating to the scanned body parts as well as all independent medical examination reports of the assignor in this case. Plaintiff’s motion is also accompanied by a memorandum of law dated August 19, 2008. The defendant has filed opposition to the motion to compel supported by the affirmation of James J. D’Ambrosio, Esq., dated September 17, 2008. The defendant alleges that the defendant has complied with the plaintiff’s discovery demands in accordance with the law and that the plaintiff is seeking additional discovery for which it is not entitled. Defendant alleges that the information plaintiff seeks is irrelevant in assisting plaintiff to prove its prima facie case and irrelevant as to the defense of the case, for they are reports which cannot be used by the defendant at trial.

Now, upon reading the notice of motion, the supporting affirmation, the memorandum of law, the defendant’s opposition papers and the accompanying exhibits, and due deliberation having been held thereon, this court determines as follows:

Facts, Analysis and Determination

The plaintiff is a radiological medical provider who accepted no-fault assignment of benefits from the defendant’s insured and conducted diagnostic testing upon the insured. The plaintiff is seeking reimbursement for medical services provided by the diagnostic testing, and the defendant has denied reimbursement. On December 18, 2007, the plaintiff filed a summons and complaint seeking to recover reimbursement of the medical services in the amount of $1,263.37 provided to the defendant’s insured.

During the course of this lawsuit, on June 4, 2008, the plaintiff served upon the defendant a demand for discovery and inspection. More specifically, the plaintiff sought copies of all medical records received by the defendant regarding the assignor’s cervical and lumbar spine and [*2]copies of any no-fault medical examinations and peer review reports relating to said claim. Plaintiff claims that the defendant has refused to comply with said demands to date, and relies upon this court’s prior rulings in MD Imaging v GEICO, DRA Imaging v GEICO, and DRA Imaging v State Farm Ins. to support the instant motion.{**22 Misc 3d at 230}

In response, the defendant opposes the motion on the basis that it has fully complied with the plaintiff’s discovery demands as required by law and asks this court to reconsider its prior ruling as set forth in the three aforementioned cases. In support of this, defendant has delineated that its discovery responses to the plaintiff included a copy of the peer review and all of the documentation reviewed by the peer review doctor. (Defendant’s affirmation in opposition dated Sept. 17, 2008.) Moreover, defendant argues that the plaintiff is simply not entitled to receive the additional documentation or information it seeks because it is irrelevant to the prosecution and the defense of the action. Finally, defendant argues that plaintiff has failed to demonstrate its entitlement to receive the discovery it seeks. (D’Ambrosio affirmation dated Sept. 17, 2008.) More specifically defendant argues that plaintiff has failed to demonstrate that it is legally authorized (as an assignee) to obtain any of the assignor’s medical records, in that the plaintiff has failed to provide an assignment of benefits form or an authorization signed by the assignor establishing entitlement to said records. (D’Ambrosio affirmation dated Sept. 17, 2008.)

The Uniform City Court Act adopts for the city courts all of the disclosure procedures set forth in article 31 of the CPLR. (UCCA 1101 [a].) Although disclosure is construed liberally, the question of what falls within the scope of permissible discovery evidence is not unlimited, rather such is left to the discretion of the court. (See Casabona v Huntington Union Free School Dist., 29 AD3d 723 [2d Dept 2006].) In general, however, the rule is that there shall be full disclosure of all material and necessary information for the prosecution or defense of the action, regardless of the burden of proof. (CPLR 3101 [a].) “Material and necessary” have been interpreted to mean “disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” (Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 161, 164 [Nassau Dist Ct 2007], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000].) In short, disclosure extends to all relevant information calculated to lead to relevant information, not just information that can be used as evidence in chief. (CPT Med. Servs., P.C. v Allstate Ins. Co., NYLJ, July 1, 2003, at 20, col 3.)

Other courts have held that health care service providers are entitled to disclosure of the assignor’s no-fault file which the defendant{**22 Misc 3d at 231} has in its possession, concluding that these records are material and necessary to the prosecution of a plaintiff’s claim that seeks to recover no-fault benefits where a defendant has denied payment. (Vinings Spinal Diagnostic v Progressive Cas. Ins. Co., 15 Misc 3d 270 [Nassau Dist Ct 2006]; Westbury Med. Care, P.C. v Lumbermans Mut. Ins. Co., 5 Misc 3d 838 [Nassau Dist Ct [*3]2004].)

Here, the plaintiff’s motion seeking to compel disclosure is based upon the defendant’s refusal to turn over material information. An order to compel disclosure is the proper vehicle to invoke when a party fails to respond to or comply with any request or demand made pursuant to article 31 of the Civil Practice Law and Rules. (CPLR 3124.) On the other hand, discovery demands which are irrelevant, privileged or confidential, may be subject to a protective order. (CPLR 3101; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50492[U] [App Term, 2d Dept 2006].) The party seeking to avoid discovery bears the burden to show that the material sought by the other party is irrelevant. (MOPS Med. Supply v GEICO Ins. Co., 4 Misc 3d 185, 188 [Civ Ct, Kings County 2004].) As such, here it is the defendant who bears the burden to establish that the material the plaintiff seeks is irrelevant. The defendant has failed to do so here.

The defendant purports that the medical documents the plaintiff seeks to have disclosed are irrelevant to the prosecution or defense of the matter since they cannot be used at trial by the defendant and could not assist the plaintiff in proving its prima facie case that the bills were mailed to the defendant. This argument is unpersuasive, for it oversimplifies the complexities intrinsic to a trial and the unpredictable path that the testimony of a witness at trial invariably takes. This court acknowledges those complexities in a trial, and finds that it is reasonable to infer that the information the plaintiff seeks to have disclosed may serve to rebut the defendant’s various claims, including the one that the services rendered were not medically necessary. As well, the materials may serve as material evidence ripe for cross-examination of the defendant’s expert witnesses which the plaintiff has a right and a duty to probe. In this court’s opinion, the information the plaintiff seeks to obtain, at the very least, may lead to relevant information that bears on the controversy in question. Therefore, the plaintiff is entitled to disclosure of this information.

Finally, however, this court finds that the plaintiff is not entitled to make such discovery demands in the absence of producing{**22 Misc 3d at 232} an assignment of benefits from the assignor. (Westbury Med. Care, P.C. v Lumbermans Mut. Ins. Co., 5 Misc 3d 838 [Nassau Dist Ct 2004].) Unlike the plaintiff’s companion case, which is also before this court (MD Imaging v Progressive N. Ins. Co., index No. CV-07-4590), the court file in the instant matter does not have an assignment of benefits form on file that demonstrates the plaintiff is legally authorized to obtain medical records concerning the claim which is the subject of this lawsuit. As such, the plaintiff must provide an assignment of benefits or authorization form to the defendant establishing that the assignor has authorized the disclosure of privileged information to MD Imaging, P.C. for purposes of obtaining insurance benefits.

Therefore, in upholding the rule that disclosure is to be broadly construed, this court finds within its broad discretion that the documents sought by the plaintiff are discoverable, for the information may rebut some of the defendant’s claims or it may lead to relevant information that bears on the controversy in question, and so it is[*4] ordered, that plaintiff’s motion to compel is granted upon the defendant’s receipt of the assignor’s valid authorization.

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 May 3, 2007, deemed from a judgment of the same court entered October 29, 2007 (see CPLR 5520 [c]). The judgment, entered pursuant to the May 3, 2007 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover first-party no-fault benefits for medical supplies furnished to its assignor, defendant moved for an order, pursuant to CPLR 3211 (a) (5) and (7), dismissing the complaint because a stipulation of discontinuance “with prejudice” had been executed by the parties in a prior action, brought under a different index number, involving the same assignor and the identical no-fault claims and claim denial forms. Plaintiff opposed, contending that it had never had an opportunity to fully litigate the merits of the discontinued action. The court below granted the motion to dismiss, and this appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

A stipulation of discontinuance which specifies that it is “with prejudice” raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440 [2006]; Singleton Mgt. v Compere, 243 AD2d 213, 216 [1998]). Plaintiff herein has not denied that the cause of action in the discontinued case is identical to the cause of [*2]action in the instant case. Nor did the stipulation executed in the discontinued action contain any explicit exception permitting the instant action to continue (see Biggs v O’Neill, 41 AD3d 1067 [2007]). There is nothing in the record before us to reflect that the parties, at the time of execution of the stipulation, intended that the stipulation not have res judicata effect.

We note that plaintiff has raised arguments on the appeal based upon factual allegations which were not presented to the court below. This court will not consider
matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). For the foregoing reasons, defendant’s motion to dismiss the instant complaint was properly granted and, accordingly, the judgment is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 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 (Arlene Bluth, J.), dated August 1, 2007. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking to vacate a judgment entered in favor plaintiffs and the underlying order which, inter alia, granted plaintiffs’ prior motion for summary judgment and, upon such vacatur, to dismiss the complaint.

Order, insofar as appealed from, affirmed without costs.

In or about April 2004, plaintiffs commenced this action to recover assigned first-party no-fault benefits. Plaintiffs subsequently moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. In July 2005, the court below granted plaintiffs’ motion and denied defendant’s cross motion. In September 2005, a judgment was entered in favor of plaintiffs. Prior to the enforcement of the judgment, plaintiffs’ attorney was suspended from practicing law in the State of New York (see Matter of Weinberg, 25 AD3d 157 [2005]). In January 2006, defendant moved for a stay of any attempt to [*2]enforce the judgment, pending the substitution of new counsel. Plaintiffs opposed the motion. In August 2006, the court below granted defendant’s motion and stayed the action until each plaintiff served and filed a proper consent to change attorney. In February 2007, plaintiffs moved to lift the stay. Defendant opposed the motion and cross-moved to vacate the award of summary judgment and dismiss the complaint. By order dated August 1, 2007, the court below granted plaintiffs’ motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

In its cross motion, defendant argued that the July 2005 order granting summary judgment to plaintiffs and the September 2005 judgment entered thereon, should be vacated because there was never consent to Mr. Weinberg’s representation given by plaintiffs from the inception of the instant action. In the alternative, defendant sought a tolling of the accrual of interest. On appeal, defendant contends that the judgment and the order awarding judgment to plaintiffs should be vacated because defendant has a meritorious defense and reasonable excuse or, in the alternative, because plaintiffs failed to establish their prima facie entitlement to summary judgment. Indeed, defendant cites CPLR 5015 in support of its position, which refers to excusable defaults. However, the case at bar does not involve a default judgment, since the September 2005 judgment was entered after defendant submitted opposition papers to plaintiffs’ motion for summary judgment, and cross-moved for summary judgment. We note that defendant has presented no other grounds under CPLR 5015 to warrant the vacatur of the judgment and order.

Moreover, defendant’s contention regarding plaintiffs’ prima facie entitlement to summary judgment is not properly before this court inasmuch as defendant is appealing from the August 2007 order entered after the September 2005 judgment. Since the order merely granted plaintiffs’ motion to lift the stay and denied defendant’s cross motion seeking to either vacate the judgment based upon plaintiffs’ alleged failure to demonstrate that they retained plaintiffs’ counsel or to toll the time during which interest accrued on the judgment, the merits of the summary judgment motions decided by the July 2005 order, upon which the judgment was entered, are not subject to review as part of this appeal. Defendant’s remaining contentions have no merit. Furthermore, we note that Mr. Weinberg’s suspension from the practice of law occurred after judgment was entered herein and he has since been reinstated to the bar, which action prompted plaintiffs’ motion to lift the stay. Accordingly, the order, insofar as appealed from, is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 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 (Loren Baily-Schiffman, J.), entered September 28, 2007. The order granted a petition to vacate a master arbitrator’s award.

Order reversed, without costs, petition to vacate the master arbitrator’s award denied, and matter remanded to the court below for the entry of a judgment confirming the master arbitrator’s award.

Valentin Avanessov, Physician, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The court granted the petition and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an “Affirmation in Support.” The only document submitted in support of the petition was one which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he “states as follows,” which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).

In view of the foregoing, the petition to vacate the master arbitrator’s award should have [*2]been denied. Furthermore, upon denying the petition, the court is required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). While we do not reach the remaining contentions, we note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008

Supreme Court, Nassau County

12410/2008

COUNSEL FOR PETITIONER

Ruffo, Tabora, Mainello & McKay, P.C.

3000 Marcus Avenue – 1W6

Lake Success, New York 11042

COUNSEL FOR RESPONDENT

Rubin, Fiorella & Friedman, LLP

292 Madison Avenue, 11th Floor

New York, New York 10017

Leonard B. Austin, J.

Petitioner seeks a judgment pursuant to CPLR 7510 confirming the arbitration award of Arbitration Forums, Inc., dated December 30, 2007.

Respondent, Republic Western Insurance Co., moves for an order pursuant to CPLR 304, 403(b) [*2]and 3211(a)(8) dismissing the petition for want of personal jurisdiction.

BACKGROUND

The insured of Petitioner Eagle Insurance Company (“Eagle”), was involved in a motor vehicle accident with a vehicle insured by Respondent, Republic Western Insurance Co. (“Republic Western”), on January 30, 2001. Republic Western’s insured allegedly rear-ended Eagle’s insured, whose vehicle had three passengers.

On or about April 1, 2003, Eagle served Republic Western with a Notice to Arbitrate the four individuals’ claims with Arbitration Forums, Inc. (“AFI”) pursuant to Insurance Law § 5105. After a lengthy investigation, on October 24, 2007, Republic Western denied coverage for Eagle’s claim on the grounds that the accident was staged.

On October 25, 2007, Republic Western submitted its contention to AFI that the loss was staged and was accordingly not covered. Republic Western argued that AFI lacked jurisdiction since coverage was contested and that Eagle’s claim must be dismissed. Republic Western explained that, through its investigation, it had determined that the loss involved individuals who were part of a criminal ring that staged accidents with U-Haul and other vehicles for the purpose of defrauding insurance companies. It maintained that Tara Pizzingrillo, the lessee and driver of the U-Haul vehicle in the

underlying claim, was arrested in connection with staging accidents and that she was indicted for being part of a scheme to defraud numerous insurance carriers by submitting fraudulent claims and intentionally colliding into automobiles.

A no-fault hearing was held on December 18, 2007. Republic Western asserted its objection to jurisdiction again at the hearing. By decision, dated December 30, 2007, the Arbitrator rejected Republic Western’s challenge to jurisdiction and found Republic Western 100% liable for Eagle’s no-fault payments to the injured parties. The Arbitrator denied Republic Western’s affirmative defense of no coverage because “indictments list other accidents, not his loss;” “U-Haul driver was indicted for fraud;” and, Eagle’s insured was “an innocent party.” By letter, dated January 22, 2008, Republic Western’s counsel requested that AFI reconsider whether it had jurisdiction over the matter under 11 NYCRR 65-4.11(a)(6).

On or about December 30, 2007, Republic Western filed a Petition in Supreme Court, New York County seeking to vacate the arbitration award. However, that action was discontinued by stipulation without prejudice on account of a stay of actions against Eagle issued by the Superior Court of New Jersey on January 29, 2007. That stay was given comity by this Court by order dated June 15, 2007. (In the Matter of Eagle Insurance Company in Rehabilitation, Newark Insurance Company in Rehabilitation, GSA Insurance Company in Rehabilitation, and NCIC Insurance Company in

Rehabilitation [Order dated June 15, 2007, Index No. 3202/07 (Supreme Court Nassau County)]).

Eagle commenced this proceeding to confirm the arbitrator’s award on July 7, 2008.

Republic Western maintains that personal jurisdiction has not been obtained; that the award is invalid because it is not signed (CPLR 7507); and that the Arbitrator exceeded his authority in determining that this was a covered event (see, 11 NYCRR 65-4.11[a][6]). [*3]

DISCUSSION

Review of an arbitration award is accomplished by way of a special proceeding. CPLR 7502(a); Scott v. Allstate Ins. Co., 45 AD3d 690 (2nd Dept. 2007). “A special proceeding is commenced by the filing of a petition (CPLR 304).” Star Boxing Inc. v. Daimler Chrysler Motors Corp., 17 AD3d 372 (2nd Dept. 2005). See also, Scott v. Allstate Ins. Co., supra; and Queens Community Medical Centers v. Eveready Ins. Co., 7 Misc 3d 1010(A) (Civ. Ct. Kings Co. 2005). “Thereafter, the petitioner must serve the respondent with a notice of petition, the petition and supporting affidavits (CPLR 403[b]).” Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra. See also, Scott v Allstate Ins. Co., supra; Queens Community Medical Centers v. Eveready Ins. Co., supra. “Pursuant to CPLR 403(c), a notice of petition shall be served in the same

manner as a summons in an action.” Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra. See also, Scott v. Allstate Ins. Co., supra; Queens Community Medical Center v. Eveready Ins. Co., supra. Neither service on a party’s attorney nor service by regular mail alone is sufficient. CPLR 308, et seq. The petition must be served in accordance with CPLR 308. Application of County Wide Ins. Co., 114 AD2d 754 (1st Dept. 1985). See also, Hehl V. Government Employees Ins. Co., 203 AD2d 572 (2nd Dept. 1994).

Republic Western did not waive its jurisdictional objection by procuring an adjournment of the return date of the Petition. Parrotta v. Wolgin, 245 AD2d 872 (3rd Dept. 1997), citing McLaughlin, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C320:2 at 492; CPLR 320(b); Becker v. Lesnick, 96 Misc 2d 819, 821-822 (Sup. Ct. NY Co. 1978). See also, Pendergast v. St. Mary’s Hospital, 156 AD2d 436 (2nd Dept.1985). The petition in this proceeding was served on Republic Western and its attorney by regular mail. Since Eagle Insurance Co. failed to serve the petition properly, this Court lacks jurisdiction and this proceeding must be dismissed. Star Boxing, Inc. v. Daimsler Chrysler Motors Corp., supra; and Queens Community Medical Center v. Eveready Ins. Co., supra.

In view of the foregoing, the parties’ remaining contentions need not be reached.

Accordingly, it is,

ORDERED, that Respondent Republic Western’s motion to dismiss the Petition pursuant to CPLR 3211(a)(8) is granted and the Petition is hereby dismissed.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

October 24, 2008Hon. LEONARD B. AUSTIN, J.S.C.

X X X

Civil Court of the City of New York, Richmond County

14725/07

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Katherine A. Levine, J.

This case invokes the inverted trajectory that must be followed when an insurer raises the defense that a medical services provider has failed to timely submit its proof of claim.

Defendant Clarendon National Ins. Co., (“defendant” or “Clarendon”) moves for summary judgment against Plaintiff, Joseph Rockman LMT a/a/o Delilah Serrano (“plaintiff” or “Rockman”) on the grounds that plaintiff failed to timely submit written proof of claim within 180 days after the date medical services were rendered pursuant to 11 N.Y.C.R.R. 65.12 (“old

rules”) ^[FN1] or within 45 days after the services were rendered pursuant to 11 N.Y.C.R.R. 65-1.1 (“new rules”).^[FN2]Defendant alleges that the bills, dated 4/17/07, are for services rendered in [*2]October – November 2002 ; the bills are thus dated some four and a half years after the services were rendered. Specifically, defendant asserts that the first time it learned about this claim was when plaintiff served its law office with a summons and complaint dated August 16, 2007, which attached a chart referring to such bill dated 4/17/07, although no such bill was attached.

Defendant further avers that its law office received the actual bill, dated 4/17/07, when it received discovery in a related case involving the same medical provider on or about,

October 10, 2007. Defendant thereupon mailed its denial of the bill on, November 7, 2007 within 30 days of its receipt of the bill, thus preserving the defense of late submission.

Plaintiff offers no explanation as to why it has failed to present a health insurance claim form dated within 180 days of the dates of services in October – November 2002. Nor does it address how it came to pass that defendant was made aware of the claim’s existence through discovery in another matter. Rather, plaintiff cross-moves for summary judgment alleging that plaintiff made its prima facie case by setting forth that the bills were mailed and not paid or denied within thirty days. In support of its motion, plaintiff submits a generic affidavit from Dr. Joseph Rockman, dated December 10, 2007, which details in great detail the office’s practices and procedures for mailing out claims for service and then states that in accordance with that procedure, the “aforementioned bills, which are the subject of this lawsuit, were mailed to the defendant.” Accompanying this affidavit were Dr. Rockman’s notes of his treatment of the assignor during 2002-03 and the Health Insurance Claim form dated, 4/17/07, for services purportedly rendered in November 2002. Plaintiff fails to explain why the only health insurance

claim it can produce is dated April 17, 2007 and does not address how this particular claim form was formulated or mailed.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented” Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). If the opposing party fails to submit evidentiary facts to controvert the fact in the movant’s papers, then summary judgment must be grated since there are not triable issues of fact. Inwood, supra . See, Kuehne & Nagel, Inc. v. F.W. Baiden, 36 [*3]NY2d 539 (1975).

Pursuant to Insurance Law §5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. The old regulations required that written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later] than 180 days after the date services are rendered or 180 days after the date written notice was given to the [insurer].” (11 N.Y.C.R.R. 65.12) See, Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 N.Y.C.R.R. 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 N.Y.C.R.R. 65.15 [d] [1]). A claim need not be paid or denied until all demanded verification is provided (see 11 N.Y.C.R.R. 65.15 [g] [1] [I] Id at 355 ; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553,(2d Dept. 1999). In the event an insurer fails to timely deny a claim or request verification from the hospital, the insurer is precluded from asserting that the claim was untimely or incomplete . Montefiore Medical Center,, supra at 355. See, Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282,(1997); New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 (2002).

Although a health care provider is required to submit its proof of claim within 180 days after the services were rendered, ” an insurer is precluded from asserting the defense of a provider’s untimely submission of proof of claim if it does not issue a timely denial of claim.” Mid Atlantic Medical P.C. , v. Travelers Indemnity, Co., 12 Misc 3d 147A, 824 NYS2d 769 (App. Term, 1st Dept. 2006). See, New York & Presbyt. Hops. V. Eagle Ins. Co., 17 AD3d 646 (2d Dept. 2005); Montefiore Medical Ctr., supra

It is clear that defendant Clarendon may assert this defense since it timely denied the claim. Defendant submitted two affidavits from its claims representative averring that Clarendon never received any claim forms dated 2002 or 2003 for services rendered between, November 1- 15, 2002, and hence could not have denied such claim. Rather, defendant first became aware of the bills dated April 17, 2007 for services rendered back in 2002 when its attorneys were served with a summons and complaint, dated July 2007, in this matter. Annexed to the complaint was a chart referring to the assignor, listing the amount owed and the dates of service. The actual bills for these services were not

received by Clarendon until October 10, 2007, when the they were included as part of discovery in a related case sent to defendant’s attorneys. The affiant claims examiner then issued a denial on November 7, 2007, within 30 days of the bill’s receipt, and the denial was mailed on that same day in accordance with the standard office mailing procedures. .

Having properly asserted this defense, defendant is entitled to summary judgment unless [*4]plaintiff can raise a factual issue as to whether the aforementioned bills were in fact mailed on, December 14, 2002, as asserted by plaintiff. “Service of both the no-fault claim and assignment forms is established by an actual affidavit of mailing or by proof of an office practice and procedure followed . . . in the regular course of . . . business’… geared so as to ensure the likelihood that [the item] is always properly addressed and mailed Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996, 999 (Civil Ct., Queens Co.. 2007) citing Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830(1978). . A post office receipt may supply additional “direct proof of actual mailing” (LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728, (3d Dept 2006) provided the evidence relates the receipt to an identified mailing (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 (2d Dept 2006).Such proof may also include a medical services bill with a certified mail return receipt, (Hospital for Joint Diseases and Presbyterian Hosp. v. Travelers Property Casualty Ins. Co., 34 AD3d 352 (2d Dept. 2006); NY. & Presbyterian Hosp. V. Allstate Ins. Co., 30 AD3d 492 (2d Dept. 2006); and or a signed return receipt card which referenced the patient and forms and an affidavit of a third party biller (NY. & Presbyterian Hosp. v. Travelers Prop. Casualty Ins. Co., 37 A.D 3d 683 ( 2d Dept. 2007).

In the instant matter, plaintiff has failed to present evidentiary facts to controvert defendant’s denial based upon plaintiff’s untimely submission of the bills. No presumption of mailing was created because the affidavit of Dr. Rockman did not state that he actually mailed the particular claims at issue, and Dr. Rockman’s recital of his office practices did not establish, by admissible proof, that this procedure was in fact followed on, December 12, 2002. See, Multiquest PLLC v. Allstate Ins. Co., 10 Misc 3d 1069(A), .814 NYS2d 563 (Civil Ct., Queens Co. 2004)( affidavit of plaintiff s owner, in which he does not attest to personal knowledge of this claim but states that he is “fully familiar with all the policies, practices and procedures” of plaintiff, is insufficient to lay a foundation for the exhibits attached to the moving papers. “Significantly, plaintiff fails to establish the mailing of its claim to defendant, a necessary element of its prima facie case.”) (See Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 774 NYS2d 564 (2d Dept 2004); Residential Holding Corp , supra . Fatally missing from plaintiff’s papers is a copy of the medical claim dated in 2002 that was purportedly mailed on December 13, 2002.

Specifically, Dr. Rockman averred that it is his office’s customary practice that after the envelope containing the bill is delivered to the U.S post office, a photocopy of the bill and supporting documents are then placed in the appropriate patient file and a notation is made on the file confirming the date and amount of the bill and the date the bill was mailed. He then alleged that the bills which are subject of this lawsuit were mailed on 12/13/02. However, as set forth above, plaintiff has failed to produce the bill that was purportedly mailed in December 2002 or even the notation that was made on the file concerning the mailing, and none of the documents that plaintiff did produce in support of its motion contain any reference to a mailing in December 2002. In fact, the only bill that plaintiff did produce for the dates of

service in question is dated April 17, 2007, and plaintiff has offered no evidence concerning the mailing of the 2007 bill. As such, plaintiff has failed to produce any evidence that could be introduced at trial so as to defeat defendant’s motion for summary judgment.

Given the aforementioned reasoning, plaintiff’s cross-motion for summary judgment is denied. Along this line, it should be noted that plaintiff has failed to establish its prima facie right to judgment as it has failed to demonstrate its timely and proper submission of the claims in question See, Presbyterian Hospital, supra , 90 NY2d 274 (1997), Elmont Open MRI & Diagnostic Radiology v. Geico, 2008 NY Slip Op. 50113U, 18 Misc 3d 1117A (Dist. Ct., Nassau Co. 2008). As set forth above, plaintiff has failed to provide admissible proof of mailing of the purported bill dated December 2002. Furthermore, plaintiff has offered no evidence whatsoever to lay a foundation for the admission of the bill dated April 17, 2007. See, e.g. Complete Orthopedic Supplies v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007). concerning the mailing of the bill dated April 17, 2007 that it has been able to produce.

In sum, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion is denied.

The foregoing constitutes the Decision and Order of the Court .

Dated October 17, 2008______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________

A P P E A R A N C E S

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Footnotes

Footnote 1:Defendant originally contended that plaintiff failed to submit the claims with 45 days of the date of service but later amended its motion to claim Claim that plaintiff violated the 180 day rule provision under the old regulations.

Footnote 2: Insurance Department Regulation 11 N.Y.C.R.R. 65-3.3 and 65-2.4 shortened the time period filing no fault claims from 180 days to 45 days from the rendering of medical services. Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002 are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days to 45 days (11 N.Y.C.R.R.] § 65.12 [e], now Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]. See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm

Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003 S & M Supply v State Farm Mut. Auto. Ins. Co. supra .