Civil Court of the City of New York, New York County

2765/08

For plaintiffs:

Edward Shapiro. P.C.

Wantagh, NY

For defendant:

McDonnell and Adels, P.C.

Garden City, NY

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, defendant moves for summary judgment pursuant to CPLR §3212 dismissing the complaint or, in the alternative, for an order pursuant to CPLR 3124 compelling plaintiffs to respond to its discovery demands on Mallella issues. For the following reasons, the branch of the motion for summary judgment is denied and the branch of the motion compelling discovery is granted to the extent set forth below.

In this action, plaintiffs seek to recover first-party No-Fault benefits in the amount of $3,937.33, plus statutory, interest, costs, and attorneys’ fees, for medical services allegedly rendered to their assignor, Marie Boucicaut, following an alleged automobile [*2]accident on April 4, 2003.

Summary Judgment

Defendant contends that the underlying incident was an intentionally caused loss which is not covered by defendant’s insurance policy and seeks summary judgment dismissing the complaint. In support thereof, defendant submits the affidavit of Christopher Howard, an investigator in its Special Investigation Unit who was personally involved in the investigation. Mr. Howard sets forth detailed results of his investigation, all of which certainly tend to show that the underlying incident was staged, and thus not covered by the policy. In opposition, the plaintiff has failed to contradict any of Mr. Howard’s sworn statements or any of the voluminous documents annexed thereto.

Although there are many cases where a court has found that the investigator’s affidavit either is or is not sufficient to defeat a plaintiff’s motion for summary judgment, defendant has failed to cite a single case where summary judgment was granted to a defendant based upon a lack of coverage/staged accident defense supported by an investigator’s affidavit. From the uncontradicted, overwhelming circumstantial evidence in this record, this Court believes that if there were cases where summary judgment could be granted to the defendant, this would be one of those cases; the only evidence more convincing than the circumstantial evidence presented here would be if the driver and passengers admitted under oath that they fabricated their stories and withdrew their claims with prejudice. Unfortunately, this Court is constrained to deny defendant’s motion for summary judgment because it appears that summary judgment is simply unavailable to a defendant denying a claim on the grounds that it involved a staged accident.

Indeed, even when the defendant’s testimony is sufficient to convince the Appellate Term that the defendant’s refusal to pay the claim was based upon its founded belief that the injuries did not arise out of an insured incident, such a finding is only sufficient to create an issue of fact; it is not a basis for granting summary judgment. The Appellate Term, Second Department has spoken on this point in A.M. Medical Services, P.C. v. Nationwide Mut. Ins. Co., 12 Misc 3d 143(A), 824 NYS2d 760 (App Term 2d Dept 2006). There, even though the evidence was compelling in defendant’s favor, that is, the driver and passenger admitted under oath that they faked the accident and withdrew their claims with prejudice, the Appellate Term reversed the trial court’s grant of summary judgment to the defendant.

In A.M. Medical Services, the EUO transcripts showed that when the assignor and [*3]driver were confronted with suspicious facts about their multiple “accidents,” they withdrew their claims with prejudice. The Appellate Term held:

[N]evertheless, the foregoing facts were sufficient to demonstrate that defendant’s refusal to pay the claim was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50861[U] [App Term, 2d & 11th Jud Dists] ). This presented an issue of fact as to whether there was a lack of coverage. Consequently, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment should have been denied.

Even when the court found the defendant’s evidence convincing and that it was absolutely right to deny the claim based upon a founded belief of a staged accident, the Appellate Term still reversed trial court’s grant of summary judgment on those grounds.

But the Appellate Term’s decision does not stop there. The Court sua sponte ordered a sanctions hearing against the plaintiff’s attorney, and criticized him for pursuing an appeal frivolously:

Despite being advised of [the evidence of withdrawals], and being provided with background information which led to the “withdrawals,” plaintiff’s counsel submitted a reply affirmation wherein he continued to seek summary judgment in favor of his client, After having been unsuccessful [below], and despite being faced with the facts which clearly support a founded belief of fraud, plaintiff’s counsel took an appeal…

Therefore, the Appellate Term refused to affirm summary judgment even though it clearly thought that the plaintiff should not have pursued its claim when faced with the same evidence. If the Appellate Term thought the evidence of a staged accident was strong enough to consider sanctions against the plaintiff’s attorney for pursuing the claim but still refused to grant summary judgment to the defendant, then the only explanation is that there is a per se rule against summary judgment dismissing a claim based on staged accident. Absent a contrary decision in this Department, this Court, following A.M. Medical Services, denies defendant’s motion for summary judgment. Mountain View Coach Lines v Storms, 102 AD2d 663, 664, 476 NYS2d 918 (2d Dept 1984); People v Brisotti, 169 Misc 2d 672, 673, 652 NYS2d 206, 207 (App Term 1st Dept 1966); 545 West Co. v Schachter, 16 Misc 3d 431, 837 NYS2d 549 (Civ Ct, NY Cty, 2007).

Compelling Discovery

Defendant also seeks the alternative relief, pursuant to CPLR 3124, of an order compelling plaintiffs to respond to defendant’s discovery demands. Nowhere in the seven pages of opposition does plaintiff oppose this relief, nor have either of the plaintiffs ever moved for a protective order. The outstanding discovery includes a notice to take the depositions of Deepak Sachdev, M.D., Stella Ilyaev, M.D., Sanford Yu, L.Ac. and Karen Cinquemandi, D.C. Defendant has set forth uncontradicted documentary evidence that Dr. Sachdev is listed the owner of close to a dozen medical facilities, and has also annexed documents showing that he been arrested for selling prescriptions from one of his facilities in the Bronx as part of a multi-million dollar medicaid fraud ring. (His case is currently pending). The defendant has annexed proof that Dr. Sachdev is also listed on at least two of the bills sued upon herein as the employee of plaintiff Right Care Medical who actually performed the medical services for the assignor.

Plaintiff chose to bring this action, and civil litigants are obligated to abide by the CPLR. According to the CPLR, the defendant has the right to depose the plaintiff. Here, Dr. Sachdev, as the owner of the facility and the practitioner who actually rendered the services, must appear for his deposition. Furthermore, he must bring with him to the deposition the documents he may need to refer to in answering the questions relating to plaintiff’s corporate structure; if he does not bring the documents and he cannot answer the questions, then defendant may bring on a motion for further relief. In addition to the plethora of uncontradicted reasons submitted by the defendant tending to show that plaintiffs may be fraudulently incorporated and thus not entitled to insurance payment, the Court notes that Dr. Sachdev may be unaware of his corporation’s billing practices inasmuch as the bills annexed to the defendant’s motion show the each NF3 for services allegedly provided by Dr. Sachdev state that Dr. Sachdev is a “nerologist;” he is no more a “nerologist” than his counsel is an “attor-knee.” A person who worked so hard to become a neurologist would know how to spell it.

Accordingly, defendant’s motion to compel discovery is granted to the extent of ordering the deposition of Deepak Sachdev, M.D. on or before August 1, 2008 at the offices of defendant’s attorneys. The Court is allowing the deposition outside New York City because it appears that Dr. Sachdev resides in Franklin Square, Nassau County, where defendant’s offices are located. If Dr. Sachdev shows proof (which proof must be shown before July 1, 2008) that he does not reside in Nassau County, then the deposition will be held at the Courthouse, 111 Centre Street, New York, New York on or before August 1, 2008 or at another location within New York City, agreeable to the parties. If Dr. Sachdev fails to appear for the Court-ordered deposition, then the plaintiff Right Care [*4]Medical, P.C. will be precluded from offering any evidence at the trial or upon a motion for summary judgment.

With respect to plaintiff AA Acupuncture Services, P.C., defendant has not shown that Dr. Sachdev is involved in that professional corporation and has not submitted any bills relating thereto. Although the documents annexed to defendant’s papers show that Mr. Yu is a principal in AA Acupuncture Service, P.C., there are no allegations that his corporation may be fraudulently incorporated, nor are there bills to show he performed any of the services billed for herein. In addition, there are no specifics alleged regarding the other two individuals listed in the deposition notice, Stella Ilyaev, M.D. and Karen Cinquemandi, D.C. Accordingly, this Court does not have a basis to order any other depositions at this time.

This is the Decision and Order of the Court.

Dated: May 30, 2008

New York, New York

Arlene P. Bluth

Judge, Civil Court

District Court of Nassau County, First District

27134/07

Attorneys for plaintiff: Law Offices of Robert E. Dash

Attorneys for defendant: Marshall & Marshall

Andrew M. Engel, J.

The Plaintiff commenced this action on July 26, 2007 seeking to recover no-fault first party benefits for health care services provided to its assignor between June 5, 2006 and September 19, 2006, following a motor vehicle accident of February 1, 2006. Issue was joined on or about September 5, 2007. The Defendant now moves for summary judgment pursuant to CPLR § 3212. The Plaintiff opposes the motion and cross-moves for summary judgment.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court’s function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant’s failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

[*2]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The Defendant admits its receipt of the Plaintiff’s claim forms which are the subject of this action, and does not challenge their timeliness or the propriety. The Defendant’s motion is based, instead, upon seven (7) denial of claim forms, each denying the Plaintiff’s claims based upon a physical examination conducted by Thomas J. McLaughlin, D.C. on May 23, 2006, at the Defendant’s request. Dr. McLaughlin concluded that all acupuncture and chiropractic services following the date of his examination were not medically necessary.

The Defendant will be precluded from raising its defense of lack of medical necessity if it fails to demonstrate a timely and proper denial of the Plaintiff’s claim within thirty (30) days of its receipt. 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 threshold question presented on the Defendant’s motion, therefore, is whether or not the Defendant has tendered proper proof of mailing of its denial of claim forms.

As correctly and succinctly set forth in Presutto, L.M.T., P.C. v. Travelers Insurance Company, 17 Misc 3d 1121, 851 NYS2d 66 (Civ. Ct. NY Co. 2006):

There are three distinct methods to demonstrate proof of mailing. The first and simplest method is to provide an affidavit from an individual with personal knowledge of the actual mailing. The second is where an acknowledgment by the adverse party that it received the subject document serves as an admission. … The third and most common method is where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed. (emphasis in original)

In the matter sub judice, the Defendant, relying upon the first and third method stated above, seeks to establish the required proof of mailing with the affidavit of Laurie Absher, one of its Litigation Examiners.

Ms. Absher advises the court that she is “fully familiar with the facts herein based upon personal knowledge and review of the file that is maintained in the regular course of business by New York Central Mutual Fire Insurance Company[.]” [emphasis in original] (Absher Affidavit 1/9/08, p. 1) Specifically, with regard to the mailing of the Defendant’s denial of claim forms, Ms. Absher alleges that she has “personal knowledge that [her] office mailed same in accordance with its normal business practice and procedure[.]” (Absher Affidavit 1/9/08, p. 6) Nowhere in her affidavit does Ms. Absher indicate how she obtained this “personal knowledge.” Ms. Absher does not allege that she mailed these denials, that she saw them mailed, that she ever handled these denials or was actually involved, in any way, with their mailing. What Ms. Absher does say is that “[t]he file maintained by Defendant indicates that all of the Defendant’s mailing procedures and safeguards were followed for this claim.” (Absher Affidavit 1/9/08, p. 7) She further avers that she “reviewed the Defendant’s computer log, and they accurately reflect all activity that has occurred on the claim for Plaintiff’s bills for medical serivces [and that the] computer log accurately reflects information for this claim, including the date the bills were received and the date the no-fault denials were mailed.” (Absher Affidavit 1/9/08, p. 8-9) Knowledge obtained upon a review of files and computer records, however, is not, as Ms. Absher posits, “personal knowledge.”

Her conclusory statement of “personal knowledge” notwithstanding, it is clear from the [*3]foregoing that Ms. Absher has no personal knowledge of the actual mailing of the denial of claim forms. It is equally clear that Ms. Absher’s knowledge of any such mailing is limited to her alleged knowledge of her office’s mailing practices and procedures and her review of purported computer records, which are not submitted to this court. Given that Ms. Absher utterly fails to set forth the facts which form the basis for this alleged “personal knowledge,” her conclusory assertion of same 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)

Ms. Absher also attempts to demonstrate the timely mailing of the Defendant’s denial of claim forms by describing what she alleges is a procedure “designed to ensure that all such correspondence is collected and personally delivered to the United States Postal service for mailing on the same day it is generated.” (Absher Affidavit 1/9/08, p. 7-8) To succeed using this method of proving mailing, Ms. Absher is required to describe “a standard office practice or procedure designed to ensure that items are properly addressed and mailed” Residential Holding Corp. v. Scottsdale Insurance 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)

The court first notes that, in a carefully worded paragraph, Ms. Absher attests that she is “familiar with the general business practices of New York Central today and in 2001. During 2001, as well as currently, it was/is New York Central’s general business practice to mail verifications and denials on the same date that they are generated.” [emphasis in original] (Absher Affidavit 1/9/08, p. 2) Conspicuously absent from Ms. Absher’s affidavit is any allegation that she is familiar with the Defendant’s record keeping or mailing practices as it existed in 2006, the year here in question. Ms. Absher clearly has not demonstrated her knowledge of such practices and procedures as they existed at the time here in question and cannot establish proper proof of mailing of the denials in question.

The above notwithstanding, the practice and procedure described by Ms. Absher, while it may be Defendant’s “standard office practice and procedure” Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it is not one “used to ensure that items were properly addressed and mailed.” id.; 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.”]

In essence, Ms. Absher describes the procedure as an employee taking the denial form, placing it in an envelope which is in turn placed in a bin in a central location in the office, then taken to a bin in the Defendant’s mail room, the contents of which are subsequently taken from the mail room to the post office. When stripped of all of its excess verbiage, it appears that the Defendant’s mailing procedure is to place the denial form in an envelope and to have someone subsequently mail same. The fact that the envelope containing the denial form is handled by a number of the Defendant’s employees and makes a number of stops in the office before it is allegedly taken to the post office in no way ensures that the items are properly mailed.

Absent from the Defendant’s alleged office procedure is any indication that there exists a practice of comparing the names and addresses on the denial forms with that of the Plaintiff’s [*4]billing, or the existence of a mailing list used to compare the names and addresses on the denial forms with the items mailed, or whether a list is maintained 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 whether anyone routinely checked to see if the total number of envelopes mailed matched the number of denial forms generated on a particular day, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service. 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) The use of any one of these practices or procedures would ensure the document’s routine mailing. Without such safeguards, notwithstanding the fact that the Defendant follows the same procedure, there is no way for the Defendant, or the court for that matter, to determine whether or not, or to even presume that all denial forms generated by the Defendant on a particular day are actually mailed. The procedure Ms. Absher describes does not take into account the possibility that an item of mail might get misplaced or lost anywhere between the desk at which it is printed and the United States Post Office. If this were to occur, under the practices and procedures described by Ms. Absher, no one would know and the Defendant would have no way of tracking the lost denial forms. Compare: Presutto v. Travelers Insurance Company, supra .

Ms. Absher’s statements to the effect that “[t]he file maintained by the Defendant indicates that all of Defendant’s mailing procedures described are carried out in accordance with the procedures set forth above[,]” (Absher Affidavit 1/9/08, p. 7) and “I reviewed the Defendant’s computer log, and they accurately reflect … information for this claim, including the date the bills were received and the date the no-fault denials were mailed[,] (Absher Affidavit 1/9/08, p. 8-9) are, themselves, insufficient to establish the mailing of Defendant’s denial of claim forms. 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) Such statements are conclusory and unsupported by any evidentiary proof. Moreover, these statements, based upon files and computer records which are not before this court, are hearsay and are not in admissible form. If the Defendant has such files and computer records, which adequately confirm the mailing of the denial of claim forms, then the Defendant has the obligation lay a proper foundation for such records, pursuant to CPLR §§ 4518 and 4539, and tender them in admissible form.

Even if the Defendant had offered adequate proof of mailing, the Defendant has failed to properly demonstrate the lack of medical necessity as a matter of law. The Defendant’s admission of receipt of the Plaintiff’s claims and the absence of any challenge by the Defendant to either the propriety or timeliness of same establishes the medical necessity of the subject services in the first instance. 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). Given the presumption of medical necessity which attaches to the Defendant’s admission of the Plaintiff’s timely submission of [*5]proper claim forms, the burden shifts to the Defendant to submit proof in admissible form establishing that the treatment in question was not necessary. Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 918 (App. Term 2nd and 11th Jud. Dists. 2003); West Tremont Medical Diagnostic, P.C. v. GEICO Insurance Company, 13 Misc 3d 131(A), 824 NYS2d 759 (App. Term 2nd and 11th Jud. Dists. 2004).

The Defendant relies upon the report of Dr. Thomas J. McLaughlin, who conducted a physical examination of the Plaintiff’s assignor on May 23, 2006, in an effort to establish the lack of medical necessity for the treatment in question. Dr. McLaughlin’s report, however, is “[f]atally missing … any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom.” American Chinese Acupuncture, P.C. v. State Farm Mutual Automobile Insurance Company, 18 Misc 3d 1125, 2008 NY Slip Op. 50205 (Civ. Ct. Richmond Co. 2008) The examination by the Defendant’s doctor notwithstanding, “its denial based on lack of necessity, … , was Conclusory [sic] unsupported by … an independent medical examination, setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection (e.g. Choicenet Chiropractic P.C. v. Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).” Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; See also: A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 10 Misc 3d 128, 809 NYS2d 480 (App. Term 2nd and 11th Jud. Dists. 2005)

Additionally, Dr. McLaughlin’s opinion is rebutted by the affidavit of Peter M. Swerz, D.C., submitted on behalf of the Plaintiff. Dr. Swerz, who treated the Plaintiff, sets forth details of his examination and findings and concludes, albeit in similarly conclusory fashion, that based thereon “the procedures performed were medically necessary to treat the injuries sustained by Ms. Lopez.” (Swerz Affidavit 3/24/08, ¶ 5e) At the very least, these conflicting affidavits raise an issue of fact which, if for no other reason, would require the denial of the Defendant’s motion.

Based upon all of the foregoing, the Defendant’s motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

To the extent that this court (Engel, J.) has previously held that “[t]o make out a prima facie case, the Plaintiff would be obligated to establish the proper submission of the bills in question and the Defendant’s failure to either pay or properly deny same within thirty (30) days of receipt thereof[,]” Maple Medical Acupuncture, P.C. v. Motor Vehicle Accident Indemnification Corporation, 15 Misc 3d 1124, 841 NYS2d 219 (Dist. Ct. Nassau Co. 2007); See also: Elmont Open MRI & Diagnostic Radiology, P.C. v. Country-Wide Insurance Co., 15 Misc 3d 552, 830 NYS2d 886 (Dist. Ct. Nassau Co. 2007), these decisions should not be followed. While, certainly, that is one of the ways a plaintiff may make out a prima facie casein a no-fault first party benefits case, See: Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Hospital for Joint Diseases v. New York Central Mutual Fire Insurance Company, 44 AD3d 903, 844 NYS2d 371 (2nd Dept. 2007); Nyack Hospital v. State Farm Mutual Automobile Insurance Company, 8 AD3d 250, 777 NYS2d 700 (2nd dept. 2004), it is not the prima facie threshold a plaintiff must meet to succeed when moving for summary judgment or at trial. If it were, in cases where a timely denial was served, it would be impossible for a plaintiff to ever make out a prima facie case.

While some courts have held that a properly completed claim form alone establishes a plaintiff’s prima facie case in no-fault first party benefits cases, See: Damadian MRI In Elmhurst, [*6]P.C. v. Liberty Mutual Insurance Company, supra .; Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; King’s Medical Supply, Inc. v. Hereford Insurance Company,5 Misc 3d 55, 785 NYS2d 270 (App. Term 9th and 10th Jud. Dists. 2004), it is now widely recognized that plaintiffs establish “a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no fault benefits was overdue (citations omitted).” Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 (2nd Dept. 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); New York and Presbyterian Hospital v. Selective Insurance Company of America, 43 AD3d 1019, 842 NYS2d 63 (2nd Dept. 2007); Countrywide Insurance Company v. 563 Grand Medical, P.C., 855 NYS2d 439 (1st Dept. 2008); Ultra Diagnostics Imaging v. Liberty Mutual Insurance Company, 9 Misc 3d 97, 804 NYS2d 532 (App.Term 9th and 10th Jud. Dists 2005);Shtarkman v. Allstate Insurance Company, 8 Misc 3d 129(A), 801 NYS2d 781(App.Term 2nd & 11th Jud. Dists. 2005); Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, 12 Misc 3d 137(A), 824 NYS2d 766 (App.Term 2nd & 11th Jud. Dists. 2006); AVA Acupuncture, P.C. v. GEICO General Ins. Co., 17 Misc 3d 41, 844 NYS2d 570 (App.Term 2nd & 11th Dist. 2007); Andrew Carothers, M.D., P.C. v. New York Central Mutual Fire Insurance Company, 16 Misc 3d 136(A), 847 NYS2d 900 (App.Term 2nd & 11th Jud. Dists. 2007); PDG Psychological, P.C. v. Lumbermans Mutual Casualty Co., 16 Misc 3d 131(A), 841 NYS2d 828 (App.Term 2nd & 11th Jud. Dists. 2007); Be Well Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139(A), 2008 NY Slip Op. 50346 (App.Term 2nd & 11th Jud. Dists. 2008); Boris Kleyman, P.C. v. Kemper Insurance Company, 19 Misc 3d 138(A), 2008 NY Slip Op. 50877 (App.Term 2nd & 11th Jud. Dist. 2008); Mani Medical, P.C. v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 128(A), 2008 NY Slip Op. 50508 (App.Term 2nd & 11th Jud. Dist. 2008); R.J. Professional Acupuncturist, P.C. v. Travelers Property Casualty Insurance Company, 19 Misc 3d 130(A), 2008 NY Slip Op. 50541 (App.Term 2nd & 11th Jud. Dists. 2008) Insurance Department Regulation 11 N.Y.C.R.R. § 65-3.8(a)(1) unequivocally defines “overdue” benefits as those “not paid within 30 calendar days after the insurer receives proof of claim ….” Insurance Law § 5106(a) similarly defines “overdue” benefits as those “not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” Citing these sections, the Court of Appeals has also recognized that “[f]ailure to pay benefits within the 30-day requirement renders benefits overdue,’ ….” Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . at 278, 660 NYS2d 536, 537 (1997); See also: Fair Price Medical Supply Corp. v. Travelers Indemnity Company, 42 AD3d 277, 837 NYS2d 350 (2nd Dept. 2007) [“Amounts not paid within the 30-day time frame are overdue,” ….”]; New York and Presbyterian Hospital v. Selective Insurance Company of America, supra .

Once a plaintiff properly establishes the proper and timely submission of its claim to a defendant and that the claim is “overdue” the burden shifts to the defendant to establish a triable issue of material fact. Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, 12 Misc 3d 137(A), 824 NYS2d 766 (App.Term 2nd & 11th Jud. Dists. 2006); AVA Acupuncture, P.C. v. GEICO General Ins. Co., supra . A defendant may do so by providing [*7]proof, in evidentiary form, that it either paid the claim or properly denied same within thirty (30) days of its receipt. The failure to properly demonstrate payment or denial within thirty (30) days notwithstanding, a defendant may also raise triable issues of fact by presenting proof, in evidentiary form, regarding any non-precludable defenses. See: Central General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 659 NYS2d 246 (1997); Presbyterian Hospital in the City of New York v. Maryland Casualty Company, supra . If a defendant does any of this, raising triable issues of fact, summary judgment will be denied to a plaintiff. See: Psychological Practice, P.C. v. Kemper Auto & Home Insurance Company, supra . [after plaintiff demonstrated benefits were overdue the defendant demonstrated, by proof in admissible form, that it timely served a denial of claim based upon a defense of lack of medical necessity, raising issues of fact requiring the denial of plaintiff’s motion and defendant’s cross-motion for summary judgment] To the same effect see Andrew Carothers, M.D., P.C. v. New York Central Mutual Fire Insurance Company, supra .; A.B. Medical Services, PLLC v. Liberty Mutual Insurance Company, supra .; New York & Presbyterian Hospital v. American Transit Insurance Company Where, however, a defendant fails to submit such sufficient proof summary judgment will be granted. See: Westchester Medical Center v. AIG, Inc., supra . [after plaintiff demonstrated benefits were overdue the defendant’s opposition was insufficient to raise a triable issue of fact as to the issuance of a proper and timely denial resulting in the granting of summary judgment to the plaintiff] To the same effect see PDG Psychological, P.C. v. Lumbermans Mutual Casualty Co., supra .

Applying these principles to the matter before this court, the affidavit of Dr. Swerz establishes, prima facie, that the Plaintiff’s claims were timely submitted and that the claims are overdue. Dr. Swerz has laid a proper business record foundation, 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), 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) Additionally, while the Plaintiff fails to provide proper proof of mailing of the claims in issue, the Defendant admits their timely receipt by submitting copies date-stamped received, thereby curing any defect 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) Dr. Swerz further alleges that these claims have not been paid.

In the face of the Plaintiff’s prima facie demonstration of its right to the relief requested, to avoid summary judgment the Defendant must come forward with proof in evidentiary form establishing the timely service of a proper denial or some other valid reason for having failed to [*8]pay these claims. As discussed at length herein above, the Defendant has failed to do so.

Accordingly, the Plaintiff’s cross-motion for summary judgment is granted.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

May 29, 2008

___________________________

Andrew M. Engel

J.D.C.

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 March 20, 2007. The order, insofar as appealed from, in effect, denied plaintiff’s motion for summary judgment.

Appeal dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, the court, in effect, denied plaintiff’s motion for summary judgment, finding that the requested relief was premature, and denied defendant’s cross motion for summary judgment. Plaintiff appealed from that part of the order which denied its motion for summary judgment.

Subsequent to the entry of the order appealed from, the Civil Court entered an order dated May 13, 2007 dismissing the action. The dismissal of the action rendered the instant appeal academic (see Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 28, 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 (Delores J. Thomas, J.), dated June 30, 2006. The order denied the petition to vacate the master arbitrator’s award and granted the cross petition to confirm the award.

Order affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator’s award, which denied petitioner’s claim for assigned first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see e.g. Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award and granted the cross petition to confirm the award.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 28, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 25, 2007. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $8,000.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affidavit executed by
plaintiff, an affirmation of plaintiff’s counsel and various documents annexed thereto. Plaintiff’s counsel submitted a copy of plaintiff’s claim form and purported to authenticate it. In opposition, defendant argued that plaintiff’s counsel did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible as plaintiff’s business record. The court granted plaintiff’s motion for summary judgment. A judgment was subsequently entered pursuant thereto. This 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 form annexed to plaintiff’s moving papers. We agree. The affirmation of plaintiff’s counsel did not lay a [*2]sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Pesce, P.J., and Steinhardt, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and STEINHARDT, JJ.
STEVEN STRUHL, M.D.
as assignee of JOHN CAPEHART,
Respondent,

-against-

ALEA NORTH AMERICA INSURANCE COMPANY,
Appellant.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish 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.
Decision Date: May 27, 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 (Genine D. Edwards, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, holding that defendant established alack of medical necessity and that defendant’s denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal 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.

Turning to the merits of defendant’s cross motion for summary judgment, defendant established that it paid $182.18 towards plaintiff’s $3,247.19 claim and timely denied the balance on the ground that the services rendered were not medically necessary based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the services rendered by plaintiff were not medically necessary and [*2]plaintiff did not present any evidence refuting defendant’s prima facie showing, the court below properly granted defendant’s cross motion for summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Civil Court of the City of New York, Richmond County

11810/07

Counsel for Plaintiff:

Law Offices of Emilia I. Rutigliano

2503 65th Street

Brooklyn, NY 11204

718-382-1266

Counsel for Defendant:

Jean Kang, Esq.

Jaffe & Koumourdas, LLP

40 Wall Street, 12th Floor

New York, NY 10005

212-809-7800

Katherine A. Levine, J.

Plaintiff Park Slope Medical and Surgical Supply, Inc.(“plaintiff” or “Park Slope”) brought this action to recover the sum of $817.25 with statutory interest, attorney fees, and costs for medical equipment it provided to its assignor Alicia Marsh (“Marsh”). Park Slope moves for summary judgment on the grounds that it has demonstrated a prima facie case of entitlement to payment for the medical supplies it furnished to Marsh. Defendant cross moves for summary judgment and to dismiss this action on the grounds that Park Slope failed to comply with the two verification requests it mailed on January 18, 2007 and February 17, 2007 wherein it requested the NF-3s, assignment of benefits and the initial narrative report from the referring physician.

Country-Wide states that its request for copies of the NF-3 and assignment of benefits are still outstanding and that it therefore was not required to pay the claim. The complaint should thus be dismissed because this action was prematurely filed.

Park Slope does not dispute defendant’s assertion that it never provided the above requested information, but asserts as justification that the second verification request was improper because it was made on the 30th day after the first request for verification. Plaintiff argues that Insurance Regulation 11 NYCRR Section 65-3.6 (b) bars the insurance carrier from issuing a second verification request until thirty days have elapsed from the time it made its first verification request, during which time it has received no response to its request.

Pursuant to Insurance Law § 5106(a) and 11 NYCRR 65-3.5, an insurer is required to [*2]either pay or deny a claim for no fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. Mt Sinai Hosp. v. Chubb Group of Ins. Cos., 43 AD3d 889-90 (2d Dept. 2007). See, Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 (1997). An insurer may toll the 30 day period by properly requesting verification within 15 days from the receipt of the bill (11 NYCRR 65.15(d)); Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc 3d 723 (Civ Ct, Queens Co., 2004). If the “requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested….” 11 NYCRR Section 65-3.6(b). “A claim need not be paid or denied until all demanded verification is provided” New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept. 2004). See Insurance Law § 5106(a); 11 NYCRR 65-3.5(c), 65-3.8(a)(1).

As is typical in the area of No-Fault Law, two diametrically opposed decisions have been rendered by the Civil Court on this issue – whether the insurer must wait until thirty days have lapsed before sending its follow-up request or be precluded from offering defenses at trial. In Psych. & Massage Therapy, supra ^[FN1] Judge Agate determined that neither case law nor statutory language required the insurer to wait thirty days before it could submit a follow-up request or be precluded from offering any defenses at trial. Id at 724. Interpreting the predecessor to Regulation 11 NYCRR § 65-3.6 (b) ^[FN2] , the court stated that “(w)hile the regulations require an insurer to submit a follow-up request within 30 days from the date of submission of the request, it does not mandate that the insurer wait 30 days before sending a follow up request. Instead, this time frame is a limit to the amount of time an insurer may wait before sending a follow up request.” Id at 724-25. The court then found that:

penalizing defendant for sending a follow-up request 25 days after its initial request is inconsistent with the goals of the No-Fault Law. The purpose of the No-Fault Law is to allow swift compensation for qualified injured persons from the insurance companies. (citation omitted). The regulations require insurers to act quickly in evaluating insured claims and to avoid prejudicial delays (citation omitted). The verification requirement exists in order for insurers to have their opportunity to promptly investigate and respond to legitimate claims, not to delay payment (citation omitted).

Psych. & Massage Therapy Assoc., PLLC, supra , p.725.

The court further noted that plaintiff’s attempt to penalize defendant for being too prompt [*3]would be totally inconsistent with defendant’s duties under the No-Fault Law to promptly respond to the insured’s claims. Id at 726.Defendant would suffer undue prejudice if a verification request was found improper as it would have to pay for a claim for which it complied with the regulations. Moreover, defendant’s early follow-up verification request did not prejudice plaintiff in any manner, as plaintiff was not under any time restraint to respond to defendant’s verification. Id. On appeal, the Appellate Term stated, without any elaboration, that: “despite defendant’s untimely denial of plaintiff’s claim for the sum of $ 1,360.48, defendant was not precluded from asserting the defense of lack of coverage” Psych. & Massage Therapy Assoc., PLLC v. Progressive Cas. Ins. Co., 2006 NY Slip Op 51351U, 12 Misc 3d 140A, 824 NYS2d 766 (App. Term, 2d Dept. 2006).

In Seaside Medical P.C. v. State Farm Mutual, 12 Misc 3d 1127, 819 NYS2d 819(Civil Ct. Richmond Cty 2006), on the other hand, Judge Sweeney credited the plaintiff’s argument that the toll to the defendant insurer’s time to pay or deny the claim was eviscerated when the defendant sent out the second verification request only 28 days after the first verification request had been mailed. After citing to a number of cases which were not on “all fours” with the instant matter because the defendants in those cases did not do any follow up after the plaintiff had failed to comply with the first verification request, Judge Sweeney noted that here the defendant did follow up but not within the 10 day period specified in 11 NYCRR 65-3.6(b). While the defendant acted “diligently,” it did not strictly adhere to the language of the regulation which was fatal since “No -Fault Regulations are in derogation of the common law and must be strictly construed.” 12 Misc 3d at 1130 citing Presbyterian Hosp. in NY. v. Aetna Cas. & Sur. Co., 233 AD2d 431, 432 (2d Dept. 1996) lv. den.. 90 NY2d 802(1997). Since defendant did not comply with the clear language of 11 NYCRR 65-3.6(b) requiring it to follow up with the plaintiff for the verification at least once during the 10 day period specified in the regulation, Judge Sweeney found that the toll “occasioned by defendant’s initial requests for verification dissipated ab initio.” Id at 1131.

While both civil courts correctly noted that no other court has directly dealt with this precise issue, the Second Department found, without any explanation, that the 30 day period in which an insurer must pay or deny a claim is tolled where there was an outstanding follow up verification request that was sent before the 30 day waiting period expired. At issue in New York & Presbyterian Hospital v. American Transit Ins. Co., 287 AD2d 699 (2d Dept. 2001) was the form of the verification letters sent by the defendant insurer, as opposed to the timeliness of the verification requests. The lower court granted summary judgment to the respondent medical provider because the defendant insurer’s request for additional information was not made on the forms prescribed by 11 NYCRR 65.15. In reversing the lower court’s grant of summary judgment, the Second Department stated that if the requested information is not received within 30 days, the insurer must send a follow up letter within 10 days thereafter. The court commented that the defendant insurer had timely requested additional verification of the claim from respondent on October 5, 1999 and when such verification was not received within 30 days, it sent a timely follow up letter dated November 1, 1999 (approximately 27 days after the first request).

In the instant matter, the follow up verification request was sent on the 30th day after the original request for verification was sent. As set forth above, Regulation 11 NYCRR 65-3.6(b) [*4]states: “if any verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days follow up with the party from whom the verification was requested…” Does the wording of this statute mandate that the insurer wait until the 31st day before he sends the follow up request or may he send it on the 30th day? The language of NYCRR 65-3.6(b), which must be strictly construed, does not answer this question as neatly as was the case in Sea Side Medical (28 days after the initial request) or Psych. & Massage Therapy (25 days after the initial request).

Where the literal meaning of the statute is unclear, the courts may look to the legislative history of the statute or regulation, as the primary consideration of the court is to ascertain and give effect to the intention of the Legislature. Statutes, §92; Dodge v. Bd. of Educ. Schodack C.S.D., 167 Misc 2d 186 (Sup. Ct. Albany Co. 1996). In construing a statute, a court must look to its “spirit and purpose, and objectives of the enactors must be kept in mind.” Western Regional Off-Track Betting Corp. v. SEIU, 115 Misc 2d 124, 127 (Sup. Ct. Erie Co. 1982). Thus, in construing a law , a court ” will sometimes be guided more by its purpose than its phraseology, whereby a statute is not to be read with a literalness that destroys the meaning, intention, purpose or beneficial end for which the statute has been designed.” Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc 2d 514 (NY Sup. Ct. 1997). See generally, McKinney’s Cons Laws of NY, Book 1, Statutes §96.

It is imperative in ruling upon No Fault insurance matters not to lose sight of the fundamental goal of the regulatory scheme, which is “designed to promote prompt payment of legitimate claims.” Nyack Hosp. v. General Motors Acceptance Corp., 8 NY3d 294, 300 (2007). As the Court of Appeals noted in Medical Society of State v. Serio, 100 NY2d 854 (2003), the most significant changes made by the Superintendent of Insurance, in adopting revised Regulation 68 (repealing and replacing the prior 11 NYCRR part 65), was a reduction in the time frames applicable to the filing of notices and proofs of claim—a consequence of the Superintendent’s determination that much of the abuse was associated with the lengthy time frames within which claims could be presented to insurers . The Superintendent also concluded that the shorter time frames would better effectuate the legislative purpose of providing prompt compensation “as the loss is incurred, while reducing rampant abuse” 100 NY2d, supra at 862.

Accordingly, a court must interpret and apply the No-Fault Regulations in a manner leading to the prompt payment of valid, documented claims. In light of the aforesaid principles of statutory construction and the purpose behind the No-Fault Regulations, this Court finds that defendant’s sending the follow up verification request on the 30th day after the original request for verification was timely and in accordance with the regulations. Since Country-Wide has established that the verification request in this action was unsatisfied, its time period to pay or deny the claim has not elapsed. See Vista Surgical Supplies, Inc. v. General Assurance Co., 12 Misc 3d 129(A), 819 NYS2d 214 (App Term, 2nd & 11th Jud Dists, 2006). Therefore, this action is premature and must be dismissed Doshi Diagnostic Imaging Services v. State Farm Insurance Co., 16 Misc 3d 42 (App Term, 2nd Dept., 2007).

Accordingly, defendant’s motion to dismiss the complaint is granted in its entirety and plaintiff’s motion for summary judgment is denied.

This constitutes the decision and order of the court.

Date: May 27, 2008

____________________________________

Hon. Katherine A. Levine

Judge, Civil Court

Staten Island, NY

Appearances

Footnotes

Footnote 1: The only difference between the instant matter and Psych & Massage Therapy, supra is that in the latter case the second verification request was sent 25 rather than 30 days after the submission of the first verification request.

Footnote 2:The pertinent regulation in effect for policies renewed prior to April 5, 2002 was 11 NYCRR 65.15(e)(2).

[*1]

Civil Court of the City of New York, Kings County, May 27, 2008

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh, for plaintiff. Freiberg & Peck, P.C., New York City, for defendant.

{**20 Misc 3d at 554} OPINION OF THE COURT

Peter P. Sweeney, J.

{**20 Misc 3d at 555}In this action to recover assigned first-party no-fault benefits, on January 31, 2008 the parties agreed to a trial on stipulated facts and to the admission into evidence of various exhibits. The question presented is whether the failure of plaintiff’s assignor to appear for an examination under oath (EUO) constituted a valid basis for denial of the claim. For the reasons that follow, the court answers this question in the negative.

Factual Background

Plaintiff All-Boro Medical Supplies, Inc. submitted a claim to defendant Progressive Northeastern Insurance Company for first-party no-fault benefits in the amount of $442.50 for durable medical equipment that it had provided to its assignor, Tony Stringer. Defendant received the claim on February 14, 2005. The motor vehicle accident in which Mr. Stringer was allegedly injured occurred on January 5, 2005.

On January 28, 2005, before it received the claim, defendant had sent Mr. Stringer a letter directing him to appear for an EUO on April 21, 2005. Mr. Stringer failed to appear for the EUO on that date. On April 22, 2005 defendant sent a second letter to Mr. Stringer, rescheduling the EUO for May 3, 2005. Again, Mr. Stringer failed to appear. On May 18, 2005 defendant denied the claim on the ground that Mr. Stringer failed to appear for the EUO.

Discussion

As a condition to coverage under the revised Personal Injury Protection Endorsement, which is required to be included in automobile insurance policies issued or renewed after April 5, 2002, “the eligible injured person . . . shall . . . as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same” (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d] [Sec I, Conditions, Proof of Claim (b)]). Inasmuch as the policy period for newly issued and renewed automobile insurance policies is one year (Insurance Law § 3425 [a] [8]), it can be assumed that the automobile insurance policy applicable in this case contained the endorsement since the underlying motor vehicle accident occurred after April 2003 (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]).

Another condition to coverage under the endorsement is that an “eligible injured person shall submit to medical examination{**20 Misc 3d at 556} by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require” (11 NYCRR 65-1.1 [d] [Sec I, Conditions, Proof of Claim]). In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (35 AD3d 720, 721 [2d Dept 2006]), the Court interpreted this language to mean that an insurer may require an eligible injured person to appear for a medical examination either “before the claim form is submitted or after the claim form is submitted.” The court stated that such interpretation furthers “the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims” (35 AD3d at 722 [citations omitted]). There is no reason to apply a different rule to EUOs.

The court thus finds that defendant acted within its rights under the endorsement in scheduling an EUO of Mr. Stringer before it had received the claim. Indeed, had the defendant not received the claim form on February 14, 2005, Mr. Stringer’s failure to appear for the EUO would have constituted a valid ground for denying the claim “retroactively to the date of loss” (35 AD3d at 722). While this court agrees that when an EUO is requested as additional verification of a claim, the insurer is required to schedule the EUO within the same time period as medical examinations, to wit, within 30 calendar days from the date of receipt of the prescribed verification form (see All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 17 Misc 3d 950, 952 [Civ Ct, Kings County 2007, Edwards, J.]; see also S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]), there is no such requirement for the scheduling of preclaim EUOs.

While defendant acted within its rights under the endorsement in scheduling Mr. Stringer for a preclaim EUO for April 21, 2005, once defendant received the claim from the plaintiff, the defendant was required to adhere to the statutory and regulatory scheme for the processing of no-fault claims. Thus, defendant was required to pay or deny the claim within 30 calendar days of its receipt (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]) or request additional verification of the claim (11 NYCRR 65-3.5). Generally, a request for additional verification of a claim must be made within 15 business days of receipt of one of the prescribed verification forms (see 11 NYCRR 65-3.5 [b]). Where an insurer makes a{**20 Misc 3d at 557} timely and proper request for additional verification, the 30-day period in which it has to either pay or deny a claim does not begin to run until all demanded verification has been provided (11 NYCRR 65-3.8 [a] [1]).

Here, while defendant had already scheduled Mr. Stringer’s EUO for April 21, 2005 before it had received the claim, if defendant insisted upon conducting the EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from February 14, 2005, the date it received the claim (see All-Boro Med. Supplies, Inc., supra; S & M Supply, supra). As a matter of law, by failing to reschedule the EUO, defendant could not assert Mr. Stringer’s failure to appear for the EUO as its basis to deny the claim (see King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450[U] [App Term, 2d & 11th Jud Dists 2005]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50140[U] [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff established its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the 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, 742-743 [2d Dept 2004]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2d Dept 2007]) and defendant has failed to establish a viable defense to the action, it is hereby ordered that judgment be entered in favor of the plaintiff in the amount of $442.50, together with interest and attorneys fees pursuant to Insurance Law § 5106 and regulations promulgated thereunder, plus costs and disbursements.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

D’Ambrosio & D’Ambrosio, P.C., Irvington, N.Y. (John P. D’Ambrosio of counsel), for respondent.

Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court, Nassau County (Galasso, J.), dated April 5, 2007, which was determined by decision and order of this Court dated December 11, 2007, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is for leave to reargue is granted; and it is further,

Ordered that the motion is otherwise denied; and it is further,

Ordered that upon reargument, the decision and order of this Court dated December 11, 2007 (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 46 AD3d 675 [2007]), is recalled and vacated, and the following decision and order is substituted therefor: [*2]

In an action to recover no-fault medical payments under insurance contracts, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated April 5, 2007, which denied its motion for summary judgment on its first cause of action, and conditionally granted the defendant’s cross motion for summary judgment dismissing the first cause of action. Presiding Justice Prudenti has been substituted for former Justice Goldstein (see 22 NYCRR 670.1 [c]).

Ordered that the order is modified, on the law, by deleting the provision thereof conditionally granting the defendant’s cross motion for summary judgment dismissing the first cause of action and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

On March 24, 2006 Michael Forthmuller was seriously injured when he lost control of his vehicle and crashed into a telephone pole. Immediately after the accident, Forthmuller was transported to Sound Shore Medical Center (hereinafter Sound Shore), where he underwent emergency surgery. Forthmuller was then transferred to the plaintiff hospital, where he remained hospitalized for approximately one month.

On or about May 4, 2006, the plaintiff, as Forthmuller’s assignor, sent the defendant, inter alia, a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. The defendant received the hospital facility form on May 8, 2006. Three days later, on May 11, 2006, the defendant sent the plaintiff a letter indicating that benefits remained delayed pending receipt of Forthmuller’s medical records, which had been previously requested. The defendant alleges that after it received the plaintiff’s medical records on May 15, 2006, it learned that Forthmuller had first been treated after the accident at Sound Shore. Accordingly, on May 20, 2006, the defendant sent Sound Shore a verification request seeking its medical records pertaining to Forthmuller’s treatment, including any blood alcohol serum toxicology test results. The defendant received Sound Shore’s medical records on June 29, 2006 and on July 12, 2006 it denied the plaintiff’s claim upon the ground that Forthmuller was driving while intoxicated at the time of the accident.

Prior to receiving the defendant’s denial of the claim, the plaintiff commenced this action seeking, in its first cause of action, to recover payment for the medical services provided to Forthmuller, as well as statutory interest and an attorney’s fee. The plaintiff thereafter moved for summary judgment on its first cause of action, contending that no-fault benefits were overdue because the defendant had failed to either pay or deny its claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.2. The defendant cross-moved for summary judgment dismissing the first cause of action, arguing that the 30-day period in which to pay or deny the claim was not triggered until it received the Sound Shore records it had requested as verification. The defendant also relied upon laboratory results contained in an uncertified copy of Sound Shore’s medical records as proof that Forthmuller was legally intoxicated at the time of the accident. The Supreme Court denied the plaintiff’s motion for summary judgment, and conditionally granted the hospital’s cross motion pending receipt of “a certified toxicology report from Sound Shore.”

“When a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim” (Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997]). In this regard, 11 [*3]NYCRR 65-3.8 (g) provides that “if an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident.” This provision also states that proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished by the insurer. Furthermore, pursuant to 11 NYCRR 65-3.5 (c), “the insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its first cause of action by submitting, inter alia, the requisite no-fault billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to either pay the bill or issue a timely denial of claim form (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]). In opposition to the motion, however, the defendant raised a triable issue of fact as to whether it timely denied the claim by submitting evidence that a verification request seeking information regarding Forthmuller’s alleged intoxication was timely and properly sent to Sound Shore (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

In addition, the defendant also raised a triable issue of fact as to whether Forthmuller was intoxicated at the time of the accident and whether his intoxication caused the accident by submission of the Sound Shore laboratory results and a police accident report. Although the South Shore records were not in admissible form because they were not certified (see CPLR 4518 [c]; see generally Abbas v Cole, 7 AD3d 649 [2004]; Jajoute v New York City Health & Hosps. Corp., 242 AD2d 674, 676 [1997]; Dudek v Sinisi, 199 AD2d 800, 801 [1993]; cf. Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769, 772 [2000]; Cleary v City of New York, 234 AD2d 411 [1996]; Maxcy v County of Putnam, 178 AD2d 729, 730 [1991]; LaDuke v State Farm Ins. Co., 158 AD2d 137, 138 [1990]; Tinao v City of New York, 112 AD2d 363 [1985]), under the circumstances of this case, the Supreme Court properly considered this evidence in conjunction with the police accident report describing the circumstances of the accident, in opposition to the plaintiff’s motion (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; see generally Phillips v Kantor & Co., 31 NY2d 307 [1972]). In addition, the police accident report describing the circumstances of the accident was properly considered to the extent that it was based upon the personal observations of the police officer present at the scene and who was under a business duty to make it (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]).

However, the Supreme Court should not have conditionally granted the defendant’s cross motion pending receipt of a certified toxicology report from South Shore. A blood alcohol test result, as set forth in a certified hospital record, constitutes prima facie evidence of the test result pursuant to CPLR 4518 (c) (see Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769 [2000]; Martin v City of New York, 275 AD2d 351, 355 [2000]; Cleary v City of New York, 234 AD2d 411 [1996]; Maxcy v County of Putnam, 178 AD2d 729, 730 [1991]; LaDuke v State Farm Ins. Co., 158 AD2d 137, 138 [1990]; Tinao v City of New York, 112 AD2d 363 [1985]). Thus, the blood alcohol test results contained in a certified hospital record from Sound Shore would be sufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident (see Rodriguez v Triborough Bridge & [*4]Tunnel Auth., 276 AD2d 769 [2000]). However, since the defendant also failed to make out a prima facie showing that Forthmuller’s alleged intoxication was the proximate cause of the accident (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753-754 [2007]; Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]; Cernik v Sentry Ins., 131 AD2d 952, 953 [1987]), its cross motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Prudenti, J.P., Skelos, Fisher and Dillon, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant-respondent.

D’Ambrosio & D’Ambrosio, P.C., Irvington, N.Y. (John P. D’Ambrosio of counsel), for respondent-appellant.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated July 9, 2007, as, upon, in effect, granting renewal, adhered to its original determination in a prior order dated December 12, 2006, denying the plaintiff’s motion for summary judgment on the complaint, and the defendant cross-appeals from so much of the same order as, upon, in effect, granting renewal, adhered to its original determination in the prior order denying the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On February 4, 2006 Esther Beaton was injured after the vehicle she was driving crashed into a tree. Beaton was transported from the accident scene to the plaintiff hospital for care of her injuries.

On April 14, 2006 the plaintiff, as Beaton’s assignor, sent the defendant, inter alia, a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. The defendant alleges that on April 25, 2006 it sent the plaintiff a verification request specifically seeking information pertaining to Beaton’s blood alcohol level at the time of the accident. Having received no response to the [*2]verification request, the defendant sent the plaintiff a follow-up verification request on May 26, 2006 again specifically seeking information pertaining to Beaton’s blood alcohol level at the time of the accident. Thereafter, on June 7, 2006, still having received no response to that request from the plaintiff, the defendant received from a police laboratory the results of a blood alcohol test indicating that Beaton was intoxicated at that time.

On June 14, 2006 the plaintiff commenced this action to recover no-fault benefits for the health services it provided to Beaton. The defendant sent the plaintiff a form dated June 15, 2006, by which it denied the claim on the ground that Beaton was driving while intoxicated at the time of the accident.

The plaintiff thereafter moved for summary judgment on the complaint, contending that no-fault benefits were overdue because the defendant failed to either pay or deny the subject claim within 30 days of receipt as required by, inter alia, Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The defendant cross-moved for summary judgment dismissing the complaint, arguing that the claim was timely and properly denied on the ground that Beaton was intoxicated at the time of the accident. The Supreme Court denied the motion and cross motion, and, upon, in effect, granting renewal, adhered to its original determination.

“Where a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim” (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 46 AD3d 675, 677 [2007], quoting Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2007]). Specifically, 11 NYCRR 65-3.8 (g) provides that “if an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident.” The provision further provides that “[p]roof of a claim shall not be complete until the information which has been requested, pursuant [thereto], has been furnished to the [insurer]” (11 NYCRR 65-3.8 [g]). Moreover, pursuant to 11 NYCRR 65-3.5 (c), “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

The plaintiff’s submissions with its motion to renew did not establish, as a matter of law, that the defendant’s verification requests were untimely or improper (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 46 AD3d 675, 678 [2007]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752-753 [2007]). Thus, upon renewal, the Supreme Court correctly adhered to its denial of the plaintiff’s motion for summary judgment on the complaint.

On its cross motion to renew, the defendant submitted Beaton’s certificate of disposition on her charge of driving while intoxicated pertaining to the accident. However, this failed to establish, as a matter of law, that Beaton’s intoxication was the cause of her accident and her resultant injuries (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 46 AD3d at 679; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2007]; Cernik v Sentry Ins., 131 AD2d 952 [1987]). Thus, upon renewal, the Supreme Court also correctly adhered to its denial of the defendant’s cross motion for summary judgment dismissing the complaint. [*3]

In light of this determination, we need not reach the plaintiff’s remaining contention. Skelos, J.P., Ritter, Florio and Dickerson, JJ., concur.