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 (Richard Velasquez, J.), entered August 24, 2006. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate the default judgment entered in this action to recover assigned first-party no-fault benefits, defendant was required to establish, pursuant to CPLR 5015 (a) (1), both a reasonable excuse for the default and a meritorious defense
(see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We find that there is no support in the record for the determination that defendant had a reasonable excuse for the default, as the only proffered excuse was set forth by defendant’s attorney, who did not allege personal knowledge of his assertions. Consequently, the court improvidently exercised its discretion in granting defendant’s motion. We pass on no other issue.

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

District Court of Nassau County, First District

13451/07

Rachel L. Kaufman, Esq., Law Office of Robert E. Dash, Esqs., 6800 Jericho Turnpike, Suite 200A West, Syosset, New York 11791, (516) 931-5668, for the Plaintiff.

Richard A. D’Arrigo, Esq.

Nicolini, Paradise, Ferretti & Sabella, PLLC, 114 Old Country Road, P.O. Box 9006, Mineola, New York 11501, (516) 741-6355.

Andrew M. Engel, J.

This action seeking to recover no-fault first party benefits involves twenty-three (23) bills for chiropractic services allegedly performed by the Plaintiff totaling $1,975.28. The action was commenced on April 11, 2007. Issue was joined on or about May 22, 2007. The Plaintiff now moves for summary judgment, alleging that it timely submitted its claim forms to the Defendant and that the claims are overdue. The Defendant opposes the motion, alleging that it never received three (3) of the Plaintiff’s bills, that it timely denied seventeen (17) of the Plaintiff’s bills, and that it failed to deny three (3) of the Plaintiff’s bills.

To establish its prima facie right to summary judgment the Plaintiff must demonstrate submit “evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no fault benefits was overdue (citations omitted).” Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 (2nd Dept. [*2]2004); See also: A.B. Medical Services, PLLC v. Liberty Mutual Insurance Company, 39 AD3d 779, 835 NYS2d 614 (2nd Dept. 2007); Westchester Medical Center v. AIG, Inc., 36 AD3d 900, 829 NYS2d 180 (2nd Dept. 2007); New York & Presbyterian Hospital v. American Transit Insurance Company, 45 AD3d 822, 846 NYS2d 352 (2nd Dept. 2007); New York and Presbyterian Hospital v. Countrywide Insurance Company, 44 AD3d 729, 843 NYS2d 662 (2nd Dept. 2007) Benefits are overdue if “not paid within 30 calendar days after the insurer receives proof of claim ….” 11 N.Y.C.R.R. § 65-3.8(a)(1); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . at 278, 660 NYS2d 536, 537 {90 NY2d 274} (1997); Fair Price Medical Supply Corp. v. Travelers Indemnity Company, 42 AD3d 277, 837 NYS2d 350 (2nd Dept. 2007); New York and Presbyterian Hospital v. Selective Insurance Company of America, 43 AD3d 1019, 842 NYS2d 63 (2nd Dept. 2007)

The Plaintiff attempts to meet its burden with the affidavit of Frank Amatulli, D.C. Dr. Amatulli was the assignor’s treating chiropractor and bases his affidavit upon his personal knowledge of this patient, the office practices and procedures he created and supervises, and his review of the patient’s treatment and billing records. Dr. Amatulli’s affidavit lays a proper business record foundation for the twenty-three (23) bills in question, See: Dan Medical, P.C. v. New York Central Mutual Fire Insurance Company, 14 Misc 3d 44, 829 NYS2d 404 (App. Term 2nd & 11th Jud. Dists. 2006); Fortune Medical, P.C. v. Allstate Insurance Co., 14 Misc 3d 136, 836 NYS2d 492 (App. Term 9th & 10 Jud. Dists. 2007); Ontario Medical, P.C. v. Sea Side Medical, P.C., 15 Misc 3d 129, 2007 WL 926349 (App. Term 9th & 10 Jud. Dists. 2007); V.S. Medical Services, P.C. v. One Beacon Insurance, 14 Misc 3d 142, 836 NYS2d 504 (App. Term 2nd & 11th Jud. Dists. 2006), providing for the admission of the “properly completed claim form[s], which suffice[] on [their] face to establish the particulars of the nature and extent of the injuries and [health benefits] received and contemplated’ (11 NYCRR § 65-1.1), and the proof of the fact and amount of loss sustained’ (Insurance Law § 5106[a])[.]” Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128, 784 NYS2d 918 (2nd and 11th Jud. Dist. 2003); Damadian MRI In Elmhurst, P.C. v. Liberty Mutual Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003)

The Defendant admits the timely receipt of twenty (20) of the Plaintiff’s claim forms, thereby curing any defect which may exist in the Plaintiff’s proof of mailing. Prestige Medical & Surgical Supply Inc. v. Clarendon National Insurance Company, 13 Misc 3d 127(A), 824 NYS2d 758 (App. Term 2nd and 11th Jud. Dists. 2006); Magnezit Medical Care, P.C. v. New York Central Mutual Fire Ins. Co., 12 Misc 3d 144(A), 824 NYS2d 763 (App. Term 2nd and 11th Jud. Dists. 2006) Under such circumstances, the Plaintiff has, prima facie, demonstrated its right to summary judgment on twenty (20) of the twenty-three (23) claims in dispute. Moreover, the Defendant admits that for three (3) of these twenty (20) claims ^[FN1] it failed to pay or deny same, entitling the Plaintiff to summary judgment thereon in the sum of $101.10.

As to the remaining three (3) bills the Defendant denies their receipt. The Plaintiff may nevertheless demonstrate its prima facie entitlement to summary judgment thereon by providing proof of their service through “a standard office practice or procedure designed to ensure that items are properly addressed and mailed” Residential Holding Corp. v. Scottsdale Insurance [*3]Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); See also: New York and Presbyterian Hospital v. Allstate Insurance Co., 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006) On this score, Dr. Amatulli alleges that “it was the regular course of business for [his] office, UNIONDALE CHIROPRACTIC OFFICE, P.C., to generate a bill on the computer for all treatment/services rendered to its patients at the time of the patient’s office visit or within a reasonable time thereafter[.]” (Amatulli Affidavit 3/25/08, ¶ 10) According to Dr. Amatulli, these bills are then “placed in a standard envelope with proper postage attached[,] … [e]ither [h]e or a member of [his] office staff checks to ensure the bills are properly addressed … [and] the envelope containing the bill(s) is submitted to the local post office by [him] or another member of the office staff and/or deposited into a receptacle of the USPS.” (Amatulli Affidavit 3/25/08, ¶¶ 11-13)

In the past this court (Engel, J.) has expressed doubts about the sufficiency of various insurance companies’ proof of mailing which essentially alleged that a denial is generated on the date which appears thereon, is placed in an envelope which then travels around the office through a series of mail bins until ultimately delivered to the post office by an outside courier. Absent from these alleged office procedures was any indication that there existed a mailing list used to compare the names and addresses on the denial forms with the items mailed, or a list indicating the number of denial forms generated on a given day along with some identification of the matters in which the denial forms were generated, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service, or that anyone routinely checked to see if the total number of envelopes mailed matched the number of denial forms generated on a particular day. See: Matter of Lumbermens Mut. Casualty Co., 135 AD2d 373, 521 NYS2d 432 (1st Dept.1987); State-Wide Insurance Co. v. Simmons, 201 AD2d 655, 608 NYS2d 274 (2nd Dept.1994); Clark v. Columbian Mut. Life Insurance Co., 221 AD2d 227, 633 NYS2d 311 (1st Dept.1995); L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mutual Casualty Co., 191 AD2d 680, 595 NYS2d 802 (2nd Dept.1993) It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist.Ct. Nassau Co. 2008); Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co., 17 Misc 3d 1135(A), 851 NYS2d 67 (Dist.Ct. Nassau Co. 2007); New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company, 16 Misc 3d 1104(A), 841 NYS2d 827 (Dist.Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe “a standard office practice[] or procedure[] designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority.

The only difference between the standard office practice or procedure approved by the Appellate Division in St. Vincent’s Hospital, id. and the standard office practice or procedure described by Dr. Amatulli is the absence of mail bins in Dr. Amatulli’s office. Accordingly, this court finds that the Plaintiff’s practice of placing its bills in a standard envelope, affixing proper postage, checking the address, and delivering the envelope to the post office or a USPS receptacle to be “a standard office practice[] or procedure[] designed to ensure that items were [*4]properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, id.

“The defendant’s denial of receipt of the claims submitted by plaintiff …, [is] insufficient to rebut the presumption of receipt upon said plaintiff’s proof of proper mailing, and fails to raise an issue of fact as to these claims ( cf. Kihl v. Pfeffer, 94 NY2d 118 [1999]; King’s Med. Supply v. Progressive Ins., 3 Misc 3d 126[A], 2004 NY Slip Op 50311[U] [App Term, 2d & 11th Jud Dists] ).” A.B. Medical Services PLLC v. Motor Vehicle Accident Indemnification Corp., 6 Misc 3d 131(A), 800 NYS2d 341 (App.Term 2nd and 11th Jud. Dists 2005); See also: ATM One, LLC v. Landaverde, 2 NY3d 472, 779 NYS2d 808 (2004); A.B. Medical Services, PLLC v. American Transit Insurance Company, 15 Misc 3d 132(A), 839 NYS2d 431 (App.Term 2nd and 11th Jud. Dists.2007); A.B. Medical Services PLLC. V. USAA Cas. Ins. Co., 6 Misc 3d 126(A), 800 NYS2d 341 (App.Term 2nd and 11th Jud. Dists 2004) Accordingly, the Plaintiff is entitled to summary judgment on the three (3) bills totaling $246.24 which the Defendant denies receiving.^[FN2]

The Defendant having admitted its timely receipt of the remaining seventeen (17) bills, which carry a presumption of medical necessity, All County Open MRI & Diag. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 NYS2d 496 (App. Term 9th and 10th Jud. Depts. 2006); Damadian MRI in Elmhurst, P.C. v. Liberty Mutual Insurance Co., 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003), “[t]he burden then shifts to defendant who, if not precluded, may rebut the presumption and establish the lack of medical necessity by submitting proof, such as a detailed peer review report or the results of an IME, that the health benefits provided were not medically necessary (citations omitted).” Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Company, 7 Misc 3d 18, 793 NYS2d 661 (App.Term 2nd and 11th Jud. Dists. 2004) aff’d 35 NY3d 720, 827 NYS2d 217 (2nd Dept. 2006) See also: A.B. Medical Services PLLC v. Utica Mutual Insurance Company, 10 Misc 3d 50, 809 NYS2d 765 (App.Term 2nd and 11th Jud. Dists. 2005); Park Neurological Services P.C. v. Geico Insurance, 4 Misc 3d 95, 782 NYS2d 507 (App.Term 9th and 10th Jud. Dists. 2004)

As a threshold issue the Defendant must demonstrate that, absent timely verification requests, it properly denied the Plaintiff’s claims within thirty (30) days of their receipt, or it will be precluded from raising the defense of lack of medical necessity. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Mt. Sinai Hospital v. Triboro Coach Incorporated, 263 AD2d 11, 699 NYS2d 77 (2nd Dept. 1999); Church Avenue Medical Care, P.C. v. Allstate Insurance Company, 189 Misc 2d 340, 731 NYS2d 582 (App. Term 2nd Dept. 2001); Struhl v. Progressive Casualty Insurance Company, 7 Misc 3d 138(A), 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) The Defendant attempts to demonstrate the timely service of its denial of claim forms with the affidavits of Linda Bernstein, a Claims Representative, Lisa Russo, a Claims Support Services Supervisor, and Joseph Mandara, the President of All American Transport, Inc., a courier service employed by the Defendant.

The affidavit of Linda Bernstein is insufficient to establish the Defendant’s timely service of its denial of claim forms. While Ms. Bernstein alleges that she made her “affiramations (sic) [*5]based upon [her] personal knowledge[,]” she utterly “failed to set forth a basis to support her conclusory assertion,” First Aid Occupational Therapy, PLLC v. State Farm Fire and Casualty Company, 19 Misc 3d 143(A), Slip Copy, 2008 WL 2284874 (App.Term 2nd and 11th Jud. Dist. 2008) which is insufficient as a matter of law. See: Republic Western Insurance Company v. RCR Builders, Inc., 268 AD2d 574, 702 NYS2d 609 (2nd Dept. 2000); S & M Supply Inc. v. Allstate Insurance Company, 7 Misc 3d 130, 801 NYS2d 242 (App. Term 2nd and 11th Jud. Dists. 2005); Montefiore Medical Center v. Government Employees Insurance Company, 34 AD3d 771, 826 NYS2d 616 (2nd Dept. 2006); Struhl, M.D. v. Progressive Casualty Insurance Company, 7 Misc 3d 138, 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) Moreover, nowhere does Ms. Bernstein allege that she has any knowledge of the Defendant’s practices and procedures for the mailing of denial of claim forms. In fact, with regard to the mailing practices and procedures, Ms. Bernstein merely refers the court to the affidavit of Ms. Russo.

While Ms. Russo apparently does have knowledge of the Defendant’s “procedures for mailing of all documents sent from [the Melville State Farm] office,” (Russo Affidavit 6/11/08, ¶ 2), where she is located, the Defendant’s denials bear an address in Parsippany, New Jersey, which is the address to which the Plaintiff sent its bills. Moreover, while Ms. Russo attests that the denials were sent from her office in Melville, Ms. Bernstein attests that the denials were mailed from her office in Ballston Spa, New York. Neither Ms. Russo nor Ms. Bernstein claim to have any knowledge of the mailing procedures in the Defendant’s Parsippany, New Jersey office, nor do they attempt to explain how claims sent to the Parsippany, New Jersey office wind up in the Melville or Balston Spa offices to be denied.

The above notwithstanding, regardless of the office from which the Defendant’s denials were allegedly mailed, the affidavits upon which the Defendant relies do not describe “a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” Residential Holding Corp. v. Scottsdale Insurance Company, supra .; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) [“office practice must be geared so as to ensure the likelihood that a notice … is always properly addressed and mailed.”] While, for the reasons set forth herein above, the Defendant has described a procedure designed to ensure that the denial of claim forms are properly mailed, none of the affidavits submitted by the Defendant describe any procedure used by the Defendant to ensure that they are properly addressed. Ms. Bernstein’s representation that “[a]ll denials on the bills referenced herein was (sic) mailed to the plaintiff at 482 Uniondale Ave., Uniondale, NY 11553[,]” (Bernstein Affidavit 6/11/08, ¶ 10) is conclusory and without probative value. Westchester Medical Center v. Countrywide Insurance Company, 45 AD3d 676, 846 NYS2d 230 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005) Neither Ms. Bernstein, Ms. Russo nor Mr. Mandara even suggest how the address to which the Defendant’s denials were allegedly mailed was obtained or verified. While Ms. Russo represents that a Claims Service Assistant will “check to ensure that the document is dated with the actual date[,]” (Russo Affidavit 6/11/08, ¶ 8) neither she, nor anyone else on behalf of the Defendant indicates that anyone checks to ensure that the document is properly addressed. Clearly, half of the requirements necessary to demonstrate adequate proof of mailing is absent from the Defendant’s [*6]proof.

Having failed to properly demonstrate the timely service of denials of claim in response to the remaining seventeen (17) bills in question, the Plaintiff is entitled to summary judgment on these claims as well. Accordingly, the Plaintiff is entitled to the entry of a judgment in the sum of $1,975.28, plus interest and counsel fees pursuant to regulation and statute, along with the costs and disbursements of this action.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

August 7, 2008

___________________________

Andrew M. Engel

J.D.C.

Footnotes

Footnote 1: Bills dated July 15, 2002, January 14, 2003 and January 30, 2003 totaling $101.10

Footnote 2: Bills dated May 31, 2002, June 28, 2002 and March 2, 2004

[*1]

Civil Court of the City of New York, New York County, August 6, 2008

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Mineola, for plaintiff.

{**20 Misc 3d at 948} OPINION OF THE COURT

Arlene P. Bluth, J.

{**20 Misc 3d at 949}At trial, the parties stipulated to the following facts: The underlying accident occurred on July 31, 2006. The policy covering this accident was issued after April 5, 2002. Plaintiff submitted the claims to defendant more than 45 days after the final date of service and defendant timely denied the claims.

11 NYCRR 65-1.1 (b), part of the Superintendent of Insurance’s regulations (new regulations), requires that all policies issued on or after April 5, 2002 contain a mandatory personal injury protection endorsement (Endorsement). Automobile policies have a one-year term (see Insurance Law § 3425 [a] [8]), and both parties agree that at the time the instant policy was issued the new regulations were in effect. The portion of the Endorsement relevant here requires that claims be submitted to insurers within 45 days after services are rendered.

Plaintiff admits that she failed to fulfill the requirements of the Endorsement, and sent the bills after the 45-day time limit. At the trial, the defendant did not produce the policy. Plaintiff asserts that it was defendant’s burden to produce the policy in order to establish that the policy actually included the Endorsement; defendant asserts that because the Endorsement is mandatory under the new regulations, it applies whether or not the policy actually contains it, and so it is not necessary to produce the policy. This court agrees with defendant and finds the introduction of the policy at trial is not necessary to prove that it contained the mandatory Endorsement.

The parties were given an opportunity to submit posttrial memoranda of law. In support of its position, the defendant relies upon the very recent Appellate Term, Second Department case Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co. (19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [2008]), which holds that because the policy was issued after April 5, 2002, the Endorsement was mandatory and the defendant need not prove that the policy contained the Endorsement. Plaintiff did not distinguish Eagle on its facts, and indeed, on page four of her posttrial memorandum, acknowledges that if this court were bound to follow Eagle, then defendant would win. Instead, plaintiff claims that the law is different in this department. Plaintiff maintains that this court must follow SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [App Term, 1st Dept 2005]), which requires a finding for plaintiff.

Plaintiff asserts that SZ Med. requires that a defendant always produce the policy in order to support its position that{**20 Misc 3d at 950} the new regulations apply. By taking language out of context, plaintiff misreads the holding of SZ Med. Indeed, there is no split between the Appellate Terms because SZ Med. and Eagle both hold that once it is established that the policy was issued on or after April 5, 2002, then the new regulations must apply.

In SZ Med., plaintiff moved for summary judgment on its prima facie case for claims submitted between December 2002 and April 2003; defendant opposed, claiming the new regulations applied. The trial court denied summary judgment, finding that because plaintiff submitted the claims after April 5, 2002, the new regulations applied. In reversing, the Appellate Term simply made clear that the date the policy was issued determines if the new regulations are applicable, not the date when plaintiff submits its claims. The defendant in that case did not come forward with proof of when the policy was issued, and there is no indication that this crucial date could have otherwise been determined; the Appellate Term granted plaintiff’s motion for summary judgment.

Here the defendant need not produce proof that the policy was issued after April 5, 2002, because the parties stipulated to that fact. Had there been no stipulation, however, the fact remains that the earliest date that the policy covering this July 31, 2006 accident could have been issued was July 31, 2005; this was more than three years after the effective date of the new regulations. Even if the insurance policy lacked the mandatory Endorsement, then the applicable provisions of the Insurance Law or the applicable regulation, which “has the force of law” (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 201 [2007]), are deemed to be part of the policy as though written into it. (See also Insurance Law § 3103 [a] [even if the policy or provision is “in violation of the requirements or prohibitions of this chapter it shall be enforceable as if it conformed with such requirements or prohibitions”]; Trizzano v Allstate Ins. Co., 7 AD3d 783 [2d Dept 2004] [auto policy]; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507 [2008] [fire policy].)

Where, as here, it is clear that the policy is subject to the new regulations, the mandatory Endorsement is read into the policy and the defendant is not required to produce it. Accordingly, after trial, the court awards judgment in favor of defendant Government Employees Insurance Company and against plaintiff Dana Woolfson, LMT. The complaint is dismissed with prejudice.

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 July 18, 2006, deemed from a judgment entered August 22, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,257.05.

Judgment reversed without costs, so much of the order entered July 18, 2006 as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint asserts seven causes of action based upon NF-3 claim forms and an eighth cause of action seeking attorney’s fees. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff’s billing manager, and various documents annexed thereto. The affirmation executed by plaintiff’s billing manager stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff’s billing manager failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Defendant also sought summary judgment upon its cross motion on the ground that the action was premature because plaintiff failed to respond to timely verification requests. The court [*2]granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Defendant’s cross motion for summary judgment is predicated upon defendant’s timely requests for verification. Inasmuch as the affidavit executed by defendant’s no-fault litigation examiner failed to establish that defendant timely mailed its verification requests based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant is not entitled to summary judgment upon its cross motion with respect to the seven causes of action on NF-3 claim forms.

Since the issue is not raised, we do not pass on whether the eighth cause of action, seeking attorney’s fees, constitutes a separate cause of action for pleading purposes under the No-Fault Law or whether it is merely an element of the damages recoverable on the substantive causes of action (see generally Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]). We note, however, that even were we to find that it is not a separate cause of action for pleading purposes, we would, upon dismissing said “cause of action,” deem the complaint amended to demand attorney’s fees as part of the damages sought in each of the remaining causes of action (see Bunker v Bunker, 73 AD2d 530 [1979]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in part and dissents in part in a separate memorandum.
Golia, J., concurs in part and dissents in part and votes to reverse the judgment, vacate the entire order entered July 18, 2006 except the provisions thereof which denied defendant’s cross motion for summary judgment with respect to its first and eighth causes of action, and, upon such vacatur, deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment to the extent of dismissing plaintiff’s second through seventh causes of action, in the following memorandum:

I concur with the majority insofar as it denied summary judgment in favor of plaintiff for the reasons stated by the majority. I further concur with the majority insofar as it denied defendant’s cross motion for summary judgment with respect to the first and eighth causes of action, which portion of the cross motion I would deny based on defendant’s failure to provide adequate proof that the follow-up verification sought the same materials as the first verification request.

I dissent, however, as to the majority’s affirmance of the lower court’s denial of [*3]defendant’s cross motion for summary judgment with respect to the second through seventh causes of action. My disagreement with my colleagues turns, in large part, on the issue of what constitutes sufficient proof of mailing. I find that the affidavit of Ms. Annie Jordan, defendant’s no-fault litigation examiner, is more than sufficient to establish that the verification requests were mailed and that the follow-up requests were timely and properly sent in accordance with the protocols set forth in the regulations. Unlike the facts in Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374, 375 [2002]), in which the court found that the “employee had no personal knowledge that the . . . form had been mailed . . .,” in this case, Ms. Jordan specifically states that “I have personal knowledge that in compliance with that policy and business duty . . . the verification letters were dated and generated, copies of the verification letters were mailed to Horton Medical P.C., 40 Horton Ave., Lynbrook, N.Y. . . . .”

She further stated in her affidavit that:

“It is [defendant’s] office practice and [defendant’s] claims examiners are under a business duty to mail all verification letters to the address applicant lists on the bills on the same day the verification letters are dated and generated. I have personal knowledge that in compliance with that policy and business duty, on 08/24/05, 09/08/05, 09/14/05, 09/28/05, 09/29/05, 10/11/05. 10/14/05, 11/03/05, 11/16/05, 12/19/05, the dates the verification letters were mailed to [plaintiff at] the address listed on the bills. Copies were also mailed to Plaintiff’s assignor. I have personal knowledge that the postal service did not return the verification letters as being undeliverable.”

As stated by the Court of Appeals in Nassau Ins. Co. v Murray (46 NY2d 828, 830 [1978]), the real question is whether or not the party has established the following:

“office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed.”

To the best of my understanding, the only reason that I can intuit as to why the majority finds this affidavit of mailing procedures to be insufficient is that it does not deconstruct the process itself. That is, it does not state that the office procedure entails affixing the proper postage, placing the envelopes in the care and custody of the U.S. Postal Service, etc.

I do not believe that such a strict catechism is necessary in order to trigger the legal presumption of mailing. Indeed, the plain meaning of the word “mailing” in and of itself denotes a process and not a concept. It is applicable only to the U.S. Postal Service. Black’s Law Dictionary (8th ed 2004) defines “mail” as a noun meaning:

“one or more items that have been properly addressed, stamped with postage, and deposited for delivery in the postal system.”

“Mail” is also defined as a verb to mean:

“to ensure that a letter, package, etc. is properly addressed, stamped, and placed into a receptacle for mail pickup.”

It should not be the province of this Court to require that a party to an action recite all the component parts encompassed by the act of this unique word “mailing” in much the same way that “plebes” at a military academy are required to recite all the component elements of the act of “walking” before taking a walk. For the military to require such strict adherence can make sense. For the courts to do so is unreasonable. [*4]
Decision Date: July 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 (Kathryn E. Freed, J.), entered August 11, 2006. The order granted defendant’s motion to vacate a default judgment and to compel plaintiff to accept a late answer.

Order reversed without costs and defendant’s motion to vacate the default judgment and compel plaintiff to accept a late answer denied.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment and to compel plaintiff to accept a late answer. The court below granted defendant’s motion, and this appeal by plaintiff ensued.

It is well settled that in order to vacate a default judgment, the defaulting party
must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). A court may, in the exercise of discretion, accept a claim of law office failure as an excuse (see CPLR 2005). However, counsel “must submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). In the case at bar, defendant’s attorney merely stated that law office failure constitutes a reasonable excuse for defaulting but did not elaborate as to why her office failed to serve a timely answer. Although defense counsel stated in her affirmation that the insurance carrier delayed in forwarding the summons and complaint to her office and made general statements regarding the summons and complaint having been “lost in the shuffle” by the insurance company, as well as [*2]lost or misplaced in the mail, her affirmation was not based on personal knowledge and therefore, has no probative value (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant failed to establish a reasonable excuse for its default.

Accordingly, the court below improvidently exercised its discretion in granting
defendant’s motion to vacate the default judgment and to compel plaintiff to accept a late answer. We pass on no other issue.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: July 30, 2008

[*1]

Supreme Court, Appellate Term, Second Department, July 30, 2008

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Robin Grumet of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

{**21 Misc 3d at 11} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, modified by providing that the branches of defendant’s motion seeking to compel plaintiff to respond to the demand for discovery and inspection, the demand for verified written interrogatories and the supplemental demand for verified written interrogatories are granted to the extent of compelling plaintiff to produce its certificate of incorporation for discovery and inspection, and serve responses to numbers 1, 15 and 16 of defendant’s demand for verified written interrogatories and numbers 1, 15, 31, 37-40, and 44-46 of defendant’s supplemental demand for verified written interrogatories within 60 days of the date of the order entered hereon; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to produce the discovery demanded in defendant’s demand for discovery and inspection, demand for verified written interrogatories and supplemental demand for verified written interrogatories. [*2]Plaintiff opposed the motion and cross-moved for a protective order. The court granted defendant’s motion to the extent of requiring plaintiff to provide documentation pertaining to the license of plaintiff’s owner, Anikeyeva, and to plaintiff’s corporate structure, and granted plaintiff’s{**21 Misc 3d at 12} cross motion to the extent of providing that Anikeyeva did not have to produce personal documents. This appeal by defendant ensued.

Plaintiff was required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiff failed to object to defendant’s demand for verified written interrogatories and to defendant’s supplemental demand for verified written interrogatories. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [2006], supra). However, the record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of, among other things, plaintiff’s certificate of incorporation, management agreements, and the names of plaintiff’s shareholders, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. Preferred Med. Imaging, P.C. v Liberty Mut. Ins. Co., 11 Misc 3d 1069[A], 2006 NY Slip Op 50437[U] [Suffolk Dist Ct 2006]). As a result, in addition to the discovery previously ordered by the Civil Court, which portion of the order we do not review since it is not the subject of this appeal, defendant is also entitled to production of plaintiff’s certificate of incorporation as well as responses to interrogatories numbered 1, 15, and 16 and responses to the supplemental interrogatories numbered 1, 15, 31, 38-40 and 44-46 since said items were not palpably improper or privileged.

We further note that special circumstances exist which warrant the disclosure of plaintiff’s corporate income tax returns (see CPLR 3101 [a]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term,{**21 Misc 3d at 13} 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; Preferred Med. Imaging, P.C. v Liberty Mut. Ins. Co., 11 Misc 3d 1069[A], 2006 NY Slip Op 50437[U] [2006], supra; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is also entitled to the information demanded in defendant’s supplemental interrogatory number 37.

Defendant’s contention that the court erred in denying the branch of its motion which sought to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial is without merit. The notice of examination before trial served by defendant sought to require Anikeyeva to appear for an examination before trial at defendant’s counsel’s office in “Lake Success, New York 11042.” However, as noted by plaintiff, since Anikeyeva is “an [*3]officer, director, member or employee” of plaintiff, defendant improperly noticed the deposition for a location outside New York City (see CPLR 3110). Consequently, the court did not err insofar as it declined to compel plaintiff to produce Anikeyeva for an examination before trial at the location sought (see e.g. Mamunes v Szczepanski, 70 AD2d 684 [1979]).

Defendant’s argument that the court should have denied the branch of plaintiff’s cross motion which resulted in a protective order as to Anikeyeva’s “personal documents” lacks merit. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant failed to meet its burden of establishing that Anikeyeva’s personal tax returns and personal bank account records are needed, particularly where, as here, defendant is entitled to disclosure of plaintiff’s tax returns and the requested financial information with respect to said corporation. Thus, based upon the record before it, the court did not improvidently exercise its discretion in issuing its protective order.

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

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel Mendez, J.), entered October 12, 2006, which, inter alia, denied its motion for partial summary judgment in the principal sum of $2,527.50.

Per Curiam.

Order (Manuel Mendez, J.), entered October 12, 2006, reversed, with $10 costs, and plaintiff’s motion for partial summary judgment in the principal sum of $2,527.50 granted. The Clerk is directed to enter judgment accordingly.

In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to partial judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]). In opposition, defendant failed to raise a triable issue since it did not submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity (see Vista Surgical Supplies, Inc. Travelers Ins. Co., 50 AD3d 778 [2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 28, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Diane A. Lebedeff, J.), entered March 31, 2006, which denied its motion for summary judgment without prejudice to renewal.

Per Curiam.

Order (Diane A. Lebedeff, J.), entered March 31, 2006, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $2,420 granted. The Clerk is directed to enter judgment accordingly.

In opposition to plaintiff’s prima facie showing of entitlement to summary judgment recovery of first party no-fault benefits (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742[2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]), defendant failed to submit competent proof that it timely mailed its denial of claim forms within the prescribed 30-day period. Thus, defendant is precluded from asserting statutory exclusion defenses, including its defenses of excessive fees (see Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]) and lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: July 28, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s motion for summary judgment and that plaintiff failed to submit a timely claim for reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff timely mailed the bills to defendant. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.

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

Pesce, P.J., and Rios, J., concur.
Decision Date: July 25, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

DECISION

Motion by respondent for leave to appeal to the Appellate Division from the order of this court dated January 15, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court, dated January 15, 2008, in the above entitled action, is granted and, upon reargument, the order and decision of this court dated January 15, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 9, 2006, deemed from a judgment entered November 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 9, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $5,805.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, contending that plaintiff failed to make a prima facie showing because plaintiff did not establish the existence of a valid assignment; that plaintiff’s claim for $82.89 was timely denied on the ground that it was subject to the personal injury protection deductible contained within the insurance policy issued to plaintiff’s assignor; and that plaintiff’s remaining claims were timely denied based upon affirmed peer review reports. In reply, plaintiff asserted that defendant’s peer review reports did not constitute evidence in admissible form in that they failed to comply with CPLR 2106 since the doctor’s signatures were affixed by stamp or generated by computer. The court held that plaintiff [*2]made a prima facie showing and that defendant’s peer review reports did not constitute evidence in admissible form because the signatures were not affixed in accordance with CPLR 2106. As a result, the lower court granted plaintiff’s motion for summary judgment, and judgment was subsequently entered thereon. This appeal by defendant ensued.

Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor’s signature was on file,’ such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). Since defendant raises no other issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff’s $746.01 claim form. (We note that the supervisor of defendant’s no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23.’ The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant’s opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.

Further, with respect to plaintiff’s remaining claims, the court below held that the peer review reports submitted by defendant in opposition to plaintiff’s motion were inadmissible inasmuch as they failed to comply with CPLR 2106. Where, as here, the signatures appear to be affixed by stamp or generated by a computer, plaintiff’s assertion, in its reply papers, that such peer review reports did not constitute evidence in admissible form due to a failure to comply with CPLR 2106 would ordinarily raise an issue of fact that cannot be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; see also James v Albank, 307 AD2d 1024 [2003]). However, inasmuch as defendant’s counsel has submitted papers to this court in opposition to plaintiff’s motion for leave to appeal to the Appellate Division from the original order of this court dated January 15, 2008, (which motion has been rendered academic by the issuance of this decision and order), conceding that [t]he reports in question contain stamped signatures,’ and there is nothing in the record to indicate that the stamped signatures were placed on the reports by the doctor who performed the peer reviews or at his direction, it is our view that defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

Accordingly, the judgment is affirmed.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish [*3]to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. In particular, I wish to note that, as stated in my dissenting opinion in Uptodate Med. Serv., P.C. v Lumbermens Mut Cas. Co. (___ Misc 3d ___, 2008 Slip Op ______ [App Term, 2d & 11th Jud Dists 2008]), an appellate court
“should always consider the issue of whether a prima facie showing has been made, irrespective of whether the issue was raised by the defendant” (see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: July 25, 2008