Civil Court of the City of New York, Kings County

56006/04

Plaintiff: Alan Banniettis, Esq.

2972 Avenue X

Brooklyn, NY 11235

(718) 648-8300

Defendant: Bruno Gerbino & Soriano, LLP

By: Akwei O. Acquage, Esq.

445 Broad Hollow Road

Suite 220

Melville, NY 11747

(631) 390-0010

Sylvia G. Ash, J.

Plaintiff brought this cause of action seeking recovery of first party no-fault benefits for medical services rendered to its assignors in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $4,151.98. Based on the testimony and evidence adduced at trial, the Court makes the following findings of fact and conclusions of law. [*2]

At trial, the parties stipulated to the Plaintiff’s prima facie case and the timely denial of the claim. The Defendant asserted that Plaintiff was not entitled to recover for the services rendered, specifically, the performance of EMG and NCV studies of the upper extremities.

The only issue before the Court was whether these studies were medically necessary.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (see Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 N.Y.S. 2d 857 [Civ. Ct. Kings Co. 2005]; Expo Medical Supplies , Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 N.Y.S. 2d 209 [Civ. Kings Co. 2006]; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 N.Y.S.2d 493 [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 N.Y.S. 2d 229 [Civ. Ct. Kings Co. 2005]).

To sustain its burden of proof, Defendant presented two witnesses, Dr. Jeffery Perry and Dr. Patrick Corcoran, whom the parties stipulated to be experts in the field of Physical Medicine and Rehabilitation & Pain Management.

Dr. Perry testified that in preparing his peer review report, he reviewed the treating physician’s report as well as the EMG and NCV reports. That it was his medical opinion that the EMG and NCV tests were not medically necessary because said tests are usually performed to (a) impact the care that the patient would receive (b) impact the results of the patient’s treatment ( c) when you are not sure of the course of treatment to take and (d) when there is a decline in the patient’s neurological performance. Dr. Perry stated that in this case, there was nothing in the patient’s records to indicate that the patient had a prior medical condition and that it was his opinion that the treating physician did not need to do the test or utilize the performance of the test to impact the care and treatment which the patient was already receiving. He further stated there was no indication that the patient had underwent radiological studies of any kind, which would have necessitated the performance of the test.

On cross examination, Dr. Perry acknowledged that a patient’s prior trauma and treatment is relevant for diagnosis and treatment and that the patient’s treating physician is always in the best position to prescribe care and treatment for the patient. However, where there is no mention of any prior trauma or medical condition, if a patient came to him with the same complaints as the patient herein, he would not have ordered the subject tests. Dr. Perry testified that as a treating physician, he has done EMGs on patients where payment had been denied based on the reviewing physician deeming the tests to be medically unnecessary. That in such cases, when necessary, he would provide additional information to the reviewing physician to explain his rationale for ordering the tests. Dr. Perry further stated that as a reviewing physician, if he gets a letter from the treating physician explaining the rationale for the tests, the vast majority of times, he would alter his opinion. [*3]In this case, Dr. Perry stated that the records he received and reviewed were sufficient for him to form a medical opinion of lack of medical necessity.

Dr. Patrick Corcoran testified that he also reviewed the treating physician medical records as well as the EMG and NCV reports. He stated that the records revealed that the patient was a 24 year old female, with no prior medical problems, who was involved in an automobile accident on January 21, 2001. That the patient’s symptoms were evidence of radiculopathy which is an indication that something is wrong with the root of the nerve. That the treating physician did not need the EMG and NCV studies to prevent an injury, to make a diagnosis or to formulate a treatment plan. That the records revealed that the treating physician had all the information needed to form a diagnosis and that the results of the electro-diagnostic studies were the same as the conclusion drawn from the patient’s physical examination.

On cross examination, in answering the question whether he inquired from the treating physician if the patient had a prior medical condition, Dr. Corcoran responded that there was no mention in the patient’s records of a prior medical condition and that there is a saying in medicine that “If you didn’t write it, you didn’t do it.” Dr. Corcoran concluded that based on the treating physician’s report and the physical examination, it was clear that the subject tests were not medically necessary. Dr. Corcoran further stated that he had sufficient information from the records provided to form a medical opinion of lack of medical necessity.

It is well settled that the function of the No-Fault Law is to expedite payment of claims (See 1973 NY Legis Ann, at 298). The Court of Appeals have found that “the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays.” (see Dermatossian v. New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v. New York City Tr. Auth., 151 AD2d 745 [2d Dept. 1989]; Fifth Avenue Pain Control

Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 N.Y.S. 2d 748 [2003]. Upon receipt of a claim, the insurer is required by both statute and regulation to pay or deny a claim within 30 days of receipt of the claim (see NY Ins. Law §5106(a); 11 N.Y.C.R.R. §65-3.8(a)(1)). An insurer may extend this 30-day period if, within 15 business days after receipt of the claim, the insurer sends a request for verification (see 11 N.Y.C.R.R. §65-3.5(b)). The 30-day period does not begin to run until all demanded verification is received (see N.Y.C.R.R. §65-3.8(a)(1)). Where the claim asserted is for payment for medical services, and the documents requested in the verification process are the patient’s medical records, to put the onus on a Defendant to request additional verification will unnecessarily prolong the time within which a determination can be made by the insurer as to whether a claim should be paid or denied. The Defendant insurer is not obligated to seek further verification where its medical expert testified that there was sufficient information to form an opinion (see Amaze Med. Supply Inc. V. Travelers Prop. Cas. [*4]Corp., 7 Misc 3d 128[A], 2005 Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]; All County Open MRI & Diagn. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 N.Y.S. 2d 493, 2006WL 543132 (N.Y.Supp.App.Term)[2006]).)

To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity of Plaintiff’s services (see CityWide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 777 N.Y.S.2d 241, 2004 NY Slip Op. 24034 [Civ. Ct., Kings County 2004]; Nir v. Allstate Insurance Company, supra; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra). At trial, the defense that a claim was not medically necessary must be supported by sufficient factual evidence or proof and cannot simply be conclusory (see Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Company, 14 Misc 3d 1231 (A), 2007 NY Slip Op. 50224(U)) In the case at bar, both Defendant’s medical experts were very specific and detailed in explaining the basis for their medical opinion of lack of medical necessity. Both doctors testified that their opinion was based on the information contained in the medical reports received from the Plaintiff. That there was no mention in said medical reports that the patient had any prior trauma or medical condition to warrant performance of the tests, and that they had sufficient information from the records they reviewed, to form a basis of lack of medical necessity.

The issue before this Court is whether the tests ordered were medically necessary. As stated above, the burden is on the Defendant to establish that the tests in question were not medically necessary. This determination is made after a review of the patient’s medical records by the Defendant’s reviewing medical expert. It is therefore important that the patient’s entire medical records be submitted for review. In most cases, the Defendant’s medical expert do not examine or have any personal contact with the patient. The opinion contained in the Defendant’s medical expert’s peer review report is based primarily on a review of the patient’s medical records received from the Plaintiff. The Plaintiff is aware that the records submitted to the Defendant’s medical expert would be used as the basis for determining whether the tests ordered were medically necessary. Therefore, it is incumbent on the Plaintiff to submit the patient’s entire records including the patient’s medical history and all ancillary information used by the treating physician to make the determination that the tests ordered are medically necessary for the treatment and care of the patient.

Plaintiff argues that both Defendant’s medical experts acknowledged that a patient’s medical history would impact his or her care and treatment. That Defendant’s medical experts should have requested additional information from the Plaintiff to ascertain whether the patient had a history of prior trauma or medical condition. That if Defendant’s medical experts had information on the patient’s medical history, their opinion would have been different. The Court finds that the Defendant should not have to question whether there are additional records or information of the patient that would assist the Defendant in forming a medical opinion as to whether the tests performed were medically necessary. That the Defendant should not have to question whether the information received are the complete records of the patient in question. [*5]

The Court notes that contrary to the Plaintiff’s contention, this is not a case where the reviewing doctors considered the information in their possession insufficient to formulate a medical necessity determination (see Amaze Medical Supply Inc. v Allstate Insurance Co., 12 Misc 3d 142(A), 824 N.Y.S. 2d 760; Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A), 824 N.Y.S.2d 763, 2006 WL 1865021)). On the contrary, it is the Defendant’s contention that the medical records received contained sufficient information to enable them to form a medical opinion on the issue at bar. It is also Defendant’s contention that the fact that there was no mention in said records of the patient’s medical history, established that either the patient did not have a prior medical history or that said history was not a factor that was considered in determining the patient’s treatment and diagnosis. The Court credits Defendant’s testimony and finds that Plaintiff’s rationale is inconsistent with the legislative intent that no-fault claims be expeditiously paid.

Plaintiff presented no witnesses at trial. Therefore, based on the unrebutted testimony of Defendant’s medical experts and the peer review report, it is this Court’s finding that Defendant has met its burden of establishing lack of medical necessity. Where the Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to the Plaintiff who must then present its own evidence of medical necessity (see Prince Richardson on Evidence §3-104, 3-202 [Farrell 11th ed]; Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231 (A) [2007]). By failing to produce any witness(es) at trial, Plaintiff has failed to meet its burden.

Accordingly, the Plaintiff’s complaint is hereby dismissed. This constitute the Decision and Order of the Court.

February 25, 2008__________________________

SYLVIA G. ASH, J.C.C.

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

015066/2007

The appearances of counsel are:

Joaquin J. Lopez, Esq.

Attorney for plaintiff

(516) 741-4799

William R. Larkin, Esq.

Attorney for defendant

(212) 629-9690

Anil C. Singh, J.

Plaintiff medical provider issued bills to defendant insurance company seeking reimbursement under the No-Fault Law for services rendered to plaintiff’s assignor, Ali Sardar, who was allegedly injured in an automobile accident. The claim was denied, and plaintiff seeks recovery on these bills.

Defendant moves for moves for summary judgment dismissing the complaint without prejudice on the ground that the assignor is a taxicab driver who was injured while driving a taxicab. Accordingly, there is an issue as to whether Worker’s Compensation benefits are available which must be determined before the Workers’ Compensation Board.

Plaintiff opposes the motion and cross-moves for summary judgment. It urges that the elements of the prima facia case are not in dispute. Defendant admits that it received plaintiff’s claim and did not make payment pursuant to the thirty-day rule. It opposes the motion, arguing that defendant has failed to submit evidence that the assignor was employed at the time of the accident.

Defendant relies on two documents in support of its position that Mr. Sardar was [*2]employed at the time of the accident. The first is the application for no-fault benefits (the “NF-2”) filled out on behalf of Mr. Sardar. The application is signed by Mr. Sardar. Question 16 states as follows: “At the time of your accident were you in the course of your employment.” This question is answered “Yes.”

The second document is the MV-104 police accident report filled out by Officer Balloin describing what occurred at the time of the accident. The report states that the Sardar vehicle is a taxi.

Plaintiff urges that neither document is admissible. Defendant has failed to lay a foundation establishing that the NF-2, which was prepared by another entity, is a business record of defendant. Further, the information contained in the police report is inadmissable hearsay.

I disagree. CPLR 4518 is an exception to the hearsay rule and allows records to come into evidence provided it can be established that the writing was made in the regular course of business; it was the regular course of business to make the writing; and the writing was made at or about the time of the transaction. The rule is premised on the notion that routinely gathered information will be trustworthy and that the maker is under an obligation to record accurate information (People v. Kennedy, 68 NY2d 569 [1986]).

Records of third parties may be received in evidence when a company relies on those records in conducting its business (People v. Di Salvo, 284 AD2d 547 [2d Dept. 2001]). Records of third parties have been admitted where there is a business duty to give and record accurate information (Pencom Sys. v. Shapiro, 237 AD2d 144 [1st Dept. 1997]); see also People v. McKissick, 281 AD2d 212 [1st Dept. 2001]).

The NF-2 satisfies the requirements of reliability. The person completing the NF-2 has a duty to fill out the application accurately. Clearly, defendant insurance company must be able to rely on the information contained in the NF-2 in order to process the application for no-fault benefits.

The court may consider a police accident report “under the business record exception to the hearsay rule to the extent that it was based upon the personal observations of the police officer present at the scene and under a business duty to make it” (Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2d Dept. 2007]. The first line on the police accident report asks for the following information: “Not investigated at Scene”; and “Accident Reconstruction.” Neither box was checked. Accordingly, Police Officer Balloin’s notation that the Sardar vehicle was a “taxi” is necessarily based on his observation at the scene of the accident.

The next issue is whether defendant has submitted sufficient evidence that Mr. Sardar was employed at the time of the accident. Worker’s Compensation is primary and, where the issue of its coverage arises, it must be presented first to the Worker’s Compensation Board (Arvatz v. Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept. 1991]; see also Mattaldi v. Beth Israel Med. Ctr., 297 AD2d 234 [1st Dept. 2002]) (threshold question whether plaintiff was employed must be determined by the Workers’ Compensation Board). As the Court of Appeals explained:

Where the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions. The Legislature has placed the responsibility for these [*3]determinations with the Workmen’s Compensation Board and there it must remain. (O’Rourke v. Long, 41 NY2d 219, 228 [1976]).

Therefore, in this action defendant must show only that there is “potential merit” to its claim that Mr. Sardar was employed at the time of the accident so as to trigger a determination by the Workers’ Compensation Board (A.B. Med. Servs. PLLC v. American Tr. Ins. Co., 8 Misc 3d 127(A) [App. Term 2d Dept]).

The statement in the NF-2 that Mr. Sardar was employed at the time of the accident and the observation of the police officer that the vehicle was a taxi is sufficient for defendant to meet its burden. Plaintiff fails to tender any evidence as to Mr. Sardar’s employment status.

For these reasons, defendant’s motion for summary judgment is granted, and the complaint is dismissed without prejudice. Plaintiff’s cross-motion for summary judgment is denied as moot.

The clerk is directed to enter judgment accordingly.

The foregoing constitutes the decision and order of the court.

Date: February 25, 2008_____________________________

New York, New YorkAnil C. Singh

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 (Diccia T. Pineda-Kirwan, J.), entered June 16, 2006, deemed from a judgment entered on September 11, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 16, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,253.50.

Judgment reversed without costs, so much of the order entered June 16, 2006 as granted plaintiff’s motion for summary judgment upon its second cause of action
vacated, defendant’s cross motion for summary judgment granted to the extent of dismissing the second cause of action, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees upon the remaining sum of $590 awarded plaintiff.

Defendant’s argument that plaintiff did not prove a prima facie case in this action to recover assigned first-party no-fault benefits because plaintiff did not prove that the supplies furnished to plaintiff’s assignor were provided pursuant to a prescription from a health care provider lacks merit. A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we do not otherwise pass upon the propriety of the determination by the court below with respect thereto. [*2]

The affidavit submitted by defendant’s litigation examiner was sufficient to give rise to a presumption that the verification requests and denial of claim forms at issue were mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the litigation examiner conceded that the verification requested concerning plaintiff’s claim for $590 was received on March 19, 2001 and that the denial of claim form was not mailed until April 19, 2001, thereby rendering the denial of claim form untimely as a matter of law and precluding defendant from interposing a defense of lack of medical necessity as to this claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g], now [11 NYCRR] § 65-3.8). In light of the foregoing, plaintiff was entitled to summary judgment upon its first cause of action.

Defendant’s timely denial of claim form as to the claim for $1,663.50 stated that the claim was denied pursuant to a peer review which found that the supplies furnished by plaintiff to its assignor were not medically necessary. Such a denial of claim form is sufficient to avoid preclusion of the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant annexed an affirmed peer review report which found that the supplies at issue were not medically necessary, thereby establishing defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s second cause of action. Inasmuch as plaintiff offered no medical evidence to rebut defendant’s prima facie case, plaintiff’s motion for summary judgment on its second cause of action should have been denied and defendant should have been granted summary judgment dismissing said cause of action (see A Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $590 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 21, 2006, deemed from a judgment entered on April 13, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,312.75.

Judgment reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and matter remanded to the court below for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross
motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued.
On appeal, defendant asserts that the affidavit by plaintiff’s billing manager, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing [*2]of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
Defendant’s contention that it was entitled to summary judgment upon its cross motion because plaintiff failed to serve responses to defendant’s timely initial and follow-up verification requests lacks merit. The affidavit submitted by defendant stated that it was defendant’s standard office practice and procedure to stamp the date on which its verification requests were mailed in the upper right hand corner of the requests and that the initial and follow-up verification requests were timely mailed on December 2, 2004 and January 11, 2005, respectively. However, the initial and follow-up verification requests annexed to defendant’s cross motion were both date-stamped December 2, 2004 in the upper right hand corner. Thus, the documentary proof annexed to defendant’s cross motion was insufficient to give rise to a presumption that the follow-up verification request was timely mailed pursuant to defendant’s professed standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; PDG Psychological, P.C. v Lumbermans Mut. Cas. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51343[U] [App Term, 2d & 11th Jud Dists 2007]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 17 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, defendant’s cross motion for summary judgment was properly denied.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered August 12, 2005, deemed from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 12, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,404.30.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claim for $270, and matter remanded to the
court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

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

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The NF-3 forms submitted in support of plaintiff’s motion for summary judgment regarding two of its claims ($630 and $694.30) identified the treating provider as Kimer Arkady and under the “Business Relation” category therein, a “V” was placed in the box labeled “Independent Contractor.” It is well settled that “[w]here a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a provider’ of the health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11[a]) and is therefore not entitled to recover direct payment’ of assigned no-fault benefits from the insurer . . . .” (Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d & 11th Jud Dists 2006] [citations omitted]). Consequently, plaintiff was not entitled to summary judgment on its claims for the sums of $630 and $694.30.

Furthermore, plaintiff was not entitled to summary judgment on its claim for the sum of $810. Defendant established that this claim was timely denied on the ground, inter alia, that the fees charged for the services provided were excessive and not in accordance with the Workers’ Compensation fee schedule. Accordingly, said defense raised a triable issue of fact (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists 2005]).

Turning to plaintiff’s claim for the sum of $270, since defendant failed to pay or deny the claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense that the assignor’s injuries were not causally related to the accident despite its untimely denial (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists 2006]), the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries sustained by plaintiff’s assignor 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]). Thus, defendant failed to establish the existence of a triable issue of fact with respect to this claim.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $270 claim, and the matter is remanded to the court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur. [*3]
Decision Date: February 21, 2008

[*1]

Civil Court of the City of New York, New York County, February 20, 2008

APPEARANCES OF COUNSEL

William Larkin for defendant. Shayna E. Sacks for plaintiff.

{**19 Misc 3d at 358} OPINION OF THE COURT

Anil C. Singh, J.

{**19 Misc 3d at 359}This is an action to recover first-party no-fault benefits under an automobile insurance policy. Defendant moves for summary judgment dismissing the complaint, contending that the lawsuit is premature because plaintiff did not comply with defendant’s demands for verification and, as such, proof of claim has not been submitted to the carrier. In the alternative, defendant moves for partial summary judgment, requesting that the court issue an order: (a) establishing that the verification at issue was requested on February 21, 2007 and April 6, 2007, and (b) shifting to plaintiff the burden to establish that proper and timely verification requests were complied with. Plaintiff opposes and cross-moves for summary judgment, contending that: (a) defendant admits to plaintiff’s prima facie case, and (b) defendant did not comply with proper verification procedures.

Plaintiff commenced this action in April 2007 alleging that defendant insurer had not paid or denied its $878.67 claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), and seeking this amount plus statutory interest and attorneys’ fees.

Defendant exhibits the sworn affidavit of Edward Baillie, who is employed by defendant as a no-fault examiner. Mr. Baillie contends that he received a bill in the amount of $878.67 for services rendered to plaintiff’s assignor on January 8, 2007. Mr. Baillie does not state the date on which defendant received the bill from plaintiff. According to Mr. Baillie, he sent a verification request to the plaintiff for the initial report of the referring physician and a letter of medical necessity of the referring physician on February 21, 2007 and a follow-up request for the documents on April 6, 2007. Mr. Baillie contends that defendant never received a response to either request. He contends that he personally printed the requests for additional verification and the envelopes for mailing them, and that the verification requests were then collected by defendant’s mailroom unit.

Luis Campbell, the mailroom supervisor, states in a sworn affidavit that he has personal knowledge of defendant’s mailing procedures. Based on his familiarity with those procedures, he contends that the verification request was mailed on February 21, 2007 and the follow-up request was mailed on April 6, 2007.

Based upon the facts alleged in the affidavits, defendant raises two arguments to justify dismissing the case. The first argument is that no-fault benefits are not overdue because plaintiff did not provide the requested verification. Defendant cites 11 NYCRR 65-3.8 (a) (1), which states: “No-fault benefits are overdue{**19 Misc 3d at 360} if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all relevant information requested pursuant to section 65-3.5 of this subpart.” Defendant also cites 11 NYCRR 65-3.8 (f), which provides: “An insurer shall be entitled to receive proper proof of claim and a failure to observe any of the time frames specified in this section shall not prevent an insurer from requiring proper proof of claim.”

Defendant contends that it requested verification in the form of the initial report of the referring physician and a letter of medical necessity. It is undisputed that plaintiff failed to provide the documents requested. Moreover, defendant contends that it has no obligation to pay or deny the claim until verification is received, regardless of whether verification was requested in a timely manner. Thus, the claim must be dismissed on the basis of plaintiff’s failure to provide proof of claim.

Defendant’s second argument is that plaintiff’s cause of action for breach of contract is premature. According to defendant, plaintiff failed to comply with defendant’s demands for verification of the claim. As a result, proof of claim has allegedly not been submitted to the carrier, and the carrier has no obligation to act under the insurance policy. Without an obligation to act under the policy, there cannot be a breach.

Plaintiff responds with three arguments. First, plaintiff contends that defendant has the burden to prove that the verification requests were mailed timely but defendant has not met its burden. The affidavits of Edward Baillie and Luis Campbell do not state when defendant received the bill from plaintiff. Because the affidavits fail to state when the bill was received, it is impossible to determine whether the verification requests were sent timely.

Second, plaintiff contends that defendant was required to mail a copy of the verification requests to the patient/assignor pursuant to 11 NYCRR former 65.15 (e) (2) (now 65-3.6 [b]). However, defendant’s affidavits fail to state to whom the verification requests were sent.

Third, plaintiff contends that defendant admits to plaintiff’s prima facie case and did not comply with proper verification procedures. As a result, plaintiff is entitled to summary judgment.

It is imperative in ruling upon no-fault insurance matters not to lose sight of the fundamental goal of the regulatory scheme,{**19 Misc 3d at 361} 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 Socy. of State of N.Y. v Serio (100 NY2d 854, 867 [2003]), the Superintendent of Insurance, in adopting revised Regulation 68 (repealing and replacing 11 NYCRR part 65), determined that these regulations were “the most effective means of advancing the legislative intent of providing prompt payment of [no-fault] benefits as the loss is incurred, while reducing rampant abuse.” Accordingly, this court’s duty is to interpret and apply the no-fault regulations in a consistent manner leading to the prompt payment of valid, documented claims.

In the instant matter, defendant suggests that an insurer is entitled to receive verification of a claim even if the request for such verification is untimely. We decline to adopt defendant’s proposed interpretation of 11 NYCRR 65-3.8 (f) because it conflicts with the basic purpose of the regulatory scheme. Rather, we interpret the language of section 65-3.8 (f) to mean only that an insurer must, within 30 calendar days after the insurer receives the initial proof of claim, either: (a) pay the claim; (b) deny the claim; or (c) make a timely request for verification. Under 11 NYCRR 65-3.8 (c), the insurer is required to either pay or deny the claim in whole or in part within 30 calendar days after proof of claim is received. In other words, section 65-3.8 (f) means simply that the 30-day rule to pay or deny a claim does not preclude an insurer from making a proper—and timely—request for verification of a claim.

We decline to adopt the defendant’s interpretation of the regulations because the suggested interpretation would render the clearly delineated time frames specified in the statute virtually meaningless. Furthermore, the proposed interpretation could lead to significant delays in the processing of claims for no-fault benefits. Such a result would clearly be at odds with the basic purpose of the regulatory scheme. Therefore, we find defendant’s contentions to be without merit.

The regulations set mandatory deadlines for verification of claims. The claims procedure for additional verification requests is set forth at 11 NYCRR 65-3.5 (b). It provides in pertinent part: “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.” The follow-up requirements are set forth at 11 NYCRR 65-3.6 (b), which states in part:{**19 Misc 3d at 362}

“Verification requests. At a minimum, if any requested verifications has [sic] 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, either by telephone call, properly documented in the file, or by mail.”

The fact that the regulations contain specific deadlines implies that an untimely [*2]verification request does not toll the 30-day period to pay or deny a claim. In fact, the case law clearly supports such a conclusion.

“Upon receipt of a no-fault claim, the regulations shift the burden to the carrier to obtain further verification or deny or pay the claim” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 [2007]). It is well settled that an insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2d Dept 2004]).

Under 11 NYCRR 65-3.5 (a), a “timely” demand for additional verification is one made within 10 days from receipt of a completed application. The case law acknowledges that a demand for verification must be timely and, further, that a claim may be dismissed for failure to respond to a timely request. (See for example St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002] [hospital failed to respond to insurer’s timely verification requests]; see also Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2d Dept 2007] [undisputed that defendant’s requests for additional information were timely].)

In the instant matter, there is sharp disagreement regarding the timeliness of the verification request. To resolve the dispute, we must look to the affidavits furnished by the defendant.

The affidavits establish the date on which the verification request was sent. However, neither affidavit states the date when defendant received the bill from plaintiff. Without this crucial piece of information, the court is unable to determine whether the verification request was timely. Accordingly, defendant has failed to make out a prima facie case for summary judgment in its favor.

We turn now to plaintiff’s cross motion for summary judgment. It is well settled that a plaintiff makes a prima facie{**19 Misc 3d at 363} showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564 [2d Dept 2005]). The court may, in its discretion, rely on defendant’s documentary submissions establishing defendant’s receipt of plaintiff’s claims (Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U] [App Term, 1st Dept 2007]). Here, the affidavit of defendant’s employee, claims examiner Edward Baillie, establishes that defendant received plaintiff’s claim and, further, that defendant failed to pay or deny the claim within the statutory 30-day time frame. Furthermore, said affidavit fails to demonstrate that defendant requested verification in a timely manner. Accordingly, the defendant has not shown a triable issue of fact regarding whether payment of no-fault benefits was overdue.

For the above reasons, defendant’s motion for summary judgment is hereby denied, and plaintiff’s cross motion for summary judgment is granted.

Kingston City Ct

06-24684

DEREK J. SPADA, ESQ.

BASCH and KEEGAN, LLP

Attorneys for Plaintiff

WILLIAM A. MEDICAN, ESQ.

LAW OFFICE OF MARY AUDI BJORK

Attorney for Defendant

James P. Gilpatric, J.

The defendant, Encompass Insurance Company, moved this Court for Summary Judgment, dismissing the above-captioned action brought in the civil part of this court by the plaintiff to compel payment by the defendant of the former’s no-fault insurance benefits pursuant to an insurance policy he had with the defendant company.

The facts underlying the motion are essentially uncontroverted. The plaintiff was involved in an automobile accident on April 30, 2005. Thereafter, the plaintiff made an appointment with his attorney to discuss the case and file a claim for so-called no-fault first party benefits, as well as any claim against any negligent party who may have caused the accident. The appointment between the plaintiff and his lawyer occurred on May 30, 2005, according to the papers submitted by the plaintiff’s lawyer, and a claim was filed with the defendant company on behalf of the plaintiff on June 1, 2005. (Exhibit C attached to defendant’s motion papers). Thereafter, the defendant denied the plaintiff’s claim by letter dated June 9, 2005 (Defendant’s Exhibit D attached to defendant’s motion papers). As a result of this denial, the plaintiff instituted this action and this motion for summary judgment to dismiss the same is now before this Court.

In 1973, the New York State Legislature enacted the Comprehensive Automobile Insurance Reparations Act, now known as the Comprehensive Motor Vehicle Insurance Reparations Act and which is now commonly referred to as the “No-Fault Law”. The “No-Fault Law” was enacted in derogation of the common law (Walton v. Lumbermens Mutual Casualty Co. 88 NY2d 211, 214 [1996]), for the primary purpose of assuring “that every auto accident victim will be compensated for substantially all of his economic loss promptly and without [*2]regard to fault”, ( Matter of Granger v. Urda, 44 NY2d 91, 98 [1978]). The Insurance Department has promulgated regulations under the statute in question to regulate the filing of claims and defendant relies on 11 NYCRR 65-1.1 in holding that the claim must have been filed within 30 days of the accident and not 32 days, as in the case at bar. The regulation in question permits a claim provided that the claimant give “clear and reasonable justification for failure to comply with such time limitations.” (11NYCRR 65.1-1).

In opposition to the motion, counsel for the plaintiff advises that his client did not come into his office until the 30th day after the accident and that the same could not be filed for another two days due to some backlog of work, although the same was filed within 48 hours after the meeting between counsel and his client. It should be noted that for many years, plaintiffs had 90 days to file such a claim and only in recent years was the time limit reduced to 30 days by regulation. In any event, the Court finds that in the circumstances presented at bar, the Court cannot find that such a claim and the excuse proffered for the brief delay in filing the same was not unreasonable as a matter of law and indeed to hold otherwise, would be contrary to the spirit of the No-Fault Law’s enabling legislation and intention to serve the public at a critical time in their life.

Moreover, the Court finds that the notice given by the defendant insurer as set forth in Exhibit D of the defendant’s motion papers, failed to fulfill its regulatory mandate that the claimant be notified of its right to justify an untimely submission with proper written justification as otherwise required in 11 NYCRR 65-3.3[e], especially since said regulation was meant to ameliorate the impact of the severely shortened time periods within which a claimant could file a claim (See, Radiology Today, PC, a/a/o Andre Radkevitch v. Citiwide Auto Leasing, Inc., d/b/a Dollar-Rent-A-Car, 15 Misc. 3rd 92, 94; and Westchester Medical Center a/a/o Christopher Andrews, et al, against Encompass Insurance Company and Allstate Insurance Company, 2007 NY Slip Op 52475U; 2007 NY Misc. Lexis 8522 [November 2, 2007]).

Accordingly, the defendant’s motion for summary judgment dismissing the action herein is denied in all respects without costs. This is the decision of this Court. Attorney for plaintiff shall submit Order on not less than five days notice of settlement.

ENTERED this day of, 2008, at Kingston, New York.

________________________________________________

Hon. James P. Gilpatric

City Court Judge, City of Kingston

Supreme Court, Nassau County

8206/04

Antonio I. Brandveen, J.

The plaintiff moves for an order vacating and setting aside any prior disposition of this matter, restoring this matter to active for a determination on the merits, and extending the time for the plaintiff to file a note of issue. The defendant opposes the motion. The underlying action seeks Payment of medical bills under no-fault coverage from an automobile accident Denied, where the infant plaintiff sustained personal injuries on August 10, 1999 when struck by a motor vehicle while riding a bicycle owned and operated by Nathaniel Salvador at or near the intersection of Jerusalem Avenue and Hawthorne Avenue, Uniondale, New York.

The plaintiff’s attorney states, in a supporting affirmation dated August 28, 2007, the mother of the infant plaintiff, as a result of the injuries, commenced a personal injuries claim against Salvador, and the defendant, under its insurance policy number 078074840 covered the Salvador vehicle for liability and no-fault. The plaintiff’s attorney states the liability action was eventually settled for $10,000.00 before now retired Nassau County Supreme Court Justice Bruce D. Alpert resulting in a $5,935.27 net recovery to the client. The plaintiff’s attorney report that sum remains in escrow as there are multiple liens against proceeds totaling $14,451.81, nearly three times the actual net recovered here. The plaintiff’s attorney asserts the liens arose because none of the medical bills incurred by the plaintiff were covered by the defendant under its no-fault insurance coverage. The plaintiff’s attorney avers the defendant contended the no-fault application for benefits was untimely filed within the 90 day period, and subsequently the infant plaintiff brought an action for payment of those medical bills in this action. The [*2]plaintiff’s attorney submits, upon information and belief, all discovery in this action has been completed, including depositions and physical examinations. The plaintiff’s attorney points out a certification order was entered on or about November 29, 2005, in this action which required the plaintiff to file a note of issue within 60 days of the order, but a note of issue was not filed within that time, and, upon information and belief, this matter was dismissed on March 14, 2006, as a pre-note issue matter for failure to file a note of issue. The plaintiff’s attorney alleges, subsequent to the certification conference and continuing to the present, settlement discussions were held between the law offices of the parties, and copies of all itemized bills were obtained and forwarded to the attorneys for the defendant on May 2, 2006, requesting payment for various medical providers. The plaintiff’s attorney reports the defense counsel, in approximately June 2006, responded to the plaintiff’s request for settlement, and advised a problem was encountered since the plaintiff had originally executed assignments to the medical providers. The plaintiff’s attorney maintains counsel for the plaintiff discussed the assignment of benefits problem with the attorney for the defendant resulting in the plaintiff’s agreement to attempt to have the assignment of benefits vacated so the plaintiff could receive the benefits, and pay the outstanding medical bills. The plaintiff’s attorney alleges the law office of the plaintiff, since approximately July 13, 2006, has been attempting to have the previously executed assignments vacated with the agreement the money collected would be applied to the outstanding medical bills, and in the interim, the note of issue was not filed which resulted in the dismissal of this matter. The plaintiff’s attorney contends there has been activity during the one year period since the matter has been dismissed, and such efforts are continuing in an attempt to settle the matter, but if it cannot be settled, it must be determined on the merits. The plaintiff’s attorney affirms, the plaintiff’s motion did testify, during the course of the discovery in this action, she filed a no-fault application within the required 90 day period, however, the plaintiff’s mother did not retain a copy of the no-fault application, and the defendant apparently denied receiving the application.

The defense attorney states, in an opposing affirmation dated October 30, 2007, the plaintiff’s motion must be denied because (1) the plaintiff fails to show a reasonable excuse why this case was not restored within one year; (2) the plaintiff fails to demonstrate a meritorious cause of action; (3) the plaintiff fails to show the absence of prejudice, if the matter is restored; and (4) the plaintiff fails to demonstrate no intent to abandon the action. The defense attorney states action was dismissed on March 14, 2006, due to the plaintiff’s failure to file a note of issue with 60 days of the order, and on August 28, 2007, the plaintiff brought a motion to restore this matter to the trial calendar. The defense attorney asserts the plaintiff’s counsel has failed to offer any reasonable excuse why it took 17 months to bring a motion seeking restoration. The defense attorney avers, by the plaintiff’s own admission in the moving papers, the plaintiff assigned the right to sue to medical providers, and there has not been any release of the assignment of those benefits, so the plaintiff has no standing to sue. The defense attorney insists the plaintiff [*3]is not able to provide proof a no-fault application was mailed within 90 days of the date of accident. The defense attorney points out the plaintiff’s motion is not supported by a person having personal knowledge of facts, to wit the plaintiff fails to include the required sworn statement of merits to support the contention the plaintiff’s bills were timely mailed to the defendant. The defense attorney contends the defendant is prejudiced by the delay, if the action is restored to the trial calendar, since more than eight years have passed since the August 10, 1999 accident, and August 28, 2007, the date of the motion to restore. The defense attorney points out there is a presumption of abandonment when the plaintiff fails to demonstrate no intent to abandon the action under CPLR 3404, and this action was dismissed on March 16, 2006, and the plaintiff seeks to restore it more than a year after the dismissal.

The plaintiff’s attorney counters, in a reply affirmation dated December 10, 2007, the defense contention the motion should be denied since the plaintiff has not complied with the requirements to restore an action pursuant to CPLR 3404 because no note of issue was filed, CPLR 3404 is inapplicable. The plaintiff’s attorney notes the sanctions under 22 NYCRR § 208.14 (c) and requirements of CPLR 3404 as postulated by the plaintiff do not apply to a matter which has been disposed prior to the filing of a note of issue. The plaintiff’s attorney challenges the defense assertion that the motion should be denied because an affidavit has not been submitted by a person with knowledge of the facts. The plaintiff’s attorney points to the reply affidavit dated December 10, 2007, of the plaintiff’s mother, a person with such knowledge, and points out the plaintiff’s mother was deposed on August 23, 2005, and testified she had received, completed, signed, and returned the no-fault application to the defendant within the required 90 day period. The plaintiff’s attorney asserts there is a reasonable excuse for not moving within one year based upon ongoing settlement discussions, and the plaintiff has a meritorious cause of action since the plaintiff’s position, as stated by the plaintiff’s mother in sworn statements and testimony, is the defendant received the no-fault application within the required period. The plaintiff’s attorney avers the prejudice claim of the defense is specious because the issue is whether the defendant received the no-fault application, and the passage of time creates no prejudice to the defendant. The plaintiff’s attorney maintains the plaintiff has continued to pursue this matter, and there is no demonstration of an intent to abandon the action.

“No-fault benefits are intended to reimburse persons for, among other things, medical expenses “incurred” as a result of a motor vehicle accident (Insurance Law § 5102 [a])” (Todaro v. GEICO General Ins. Co., 46 AD3d 1086, 1088, 848 NYS2d 393 [3rd Dept., 2007]).

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 NY2d 138, 501 NYS2d 8, 492 NE2d 116; Dominguez v. Carioscia, 1 [*4]AD3d 396, 766 NYS2d 685). Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to vacate its default since the defendant established that the default was not willful, but rather, was due to law office failure on the part of its counsel (see Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 783 NYS2d 612; Weekes v. Karayianakis, 304 AD2d 561, 758 NYS2d 117; CPLR 2005). Furthermore, the defendant demonstrated a meritorious defense (see Fentin & Goldman v. Ito, 2 AD3d 397, 767 NYS2d 865). Accordingly, the Supreme Court should have vacated the defendant’s default in appearing and answering the complaint

Friedman v. Crystal Ball Group, Inc., 28 AD3d 514, 514-515, 813 NYS2d 496 [2nd Dept., 2006].

This Court has carefully reviewed and considered all of the parties’ papers submitted on this motion.

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5

New York and Presbyterian Hosp. v. Selective Ins. Co. of America, 43 AD3d 1019, 1020, 842 NYS2d 63 [2nd Dept., 2007].

This Court finds the plaintiff has not met the prerequisites for the relief sought here.

Accordingly, the motion is denied in all respects. So ordered.

Dated: February 8, 2008

E N T E R:

______________________________

J. S. C.

FINAL DISPOSITION XXXNON FINAL DISPOSITION

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 (Timothy J. Dufficy, J.), entered October 28, 2005. The judgment confirmed three arbitration awards and awarded petitioner the principal sum of $10,300.80.

Judgment affirmed without costs.

Petitioner commenced compulsory arbitration proceedings against respondent, pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.11 (see Insurance Law § 5105 [b]), seeking reimbursement in the amount of $10,300.80 for no-fault benefits paid to three claimants. The arbitrator issued three awards in favor of petitioner. Respondent did not seek to vacate or modify the awards, but submitted opposition to the petition to confirm said awards. The court below granted the petition, ruling that, inter alia, respondent failed to seek to vacate the arbitration awards within the statutory period pursuant to CPLR 7511. A judgment was entered and the instant appeal ensued.

As a preliminary matter, we note that respondent was entitled to make its arguments for vacating the arbitration awards in opposition to a petition to confirm the awards, even though the statutory 90-day period in which to seek vacatur of the arbitration awards had expired (see Matter of Brentnall v Nationwide Mut. Ins. Co., 194 AD2d 537 [1993]; State Farm Mut. Ins. Co. v Fireman’s Fund Ins. Co., 121 AD2d 529 [1986]).

Upon a review of the record, we find that the instant awards in the compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v [*2]Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]). In the awards, the arbitrator indicated that he had considered, inter alia, respondent’s affirmative defenses and the police report. Accordingly, it cannot be said that the
arbitration awards were arbitrary and capricious or unsupported by any reasonable hypothesis. Consequently, the judgment is affirmed.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: February 08, 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 (Sylvia G. Ash, J.), entered October 11, 2006, deemed from a judgment entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 11, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $5,416.42.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. A judgment was subsequently entered.
On appeal, defendant asserts that the affidavit by plaintiff’s employee, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud [*2]Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.
In view of the foregoing, we reach no other issue.
Pesce, P.J., and Rios, J., concur.
Decision Date: February 08, 2008