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, Kings County (Bernard J. Graham, J.), entered January 19, 2006. The judgment denied the petition to vacate a master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

563 Grand Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which denied its claims for assigned first-party no-fault benefits. After respondent opposed the petition, the court denied the petition. This appeal by petitioner ensued.

An arbitrator in an arbitration proceeding to recover no-fault benefits may raise any issue which the arbitrator deems relevant (see Insurance Department Regulations [11 NYCRR] § 65-4.4 [e]; § 65-4.5 [o]; see also Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 872 [2003]; 563 Grand Med., P.C. v New York State Ins. Dept., 24 AD3d 413 [2005]; cf. Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]). The master arbitrator determined that, based upon the documents submitted to the arbitrator, the arbitrator had a rational basis for finding that petitioner was not entitled to recover because, among other things, petitioner may have been seeking to recover for work performed by an independent contractor. In our view, the master arbitrator’s determination was not arbitrary, capricious or irrational (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [*2][2003]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: January 8, 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 (Dolores L. Waltrous, J.), entered June 22, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the
documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below denied the motion, finding that defendant provided proof of timely verification requests and of a timely denial based upon a peer review. This appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

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

Nassau Dist Ct

13481/06

Attorneys for Plaintiff: Friedman, Harfenist, Langer & Kraut

Attorneys for Defendant: Rubin, Fiorella & Friedman, LLP

Andrew M. Engel, J.

This is an action to recover no-fault first party benefits allegedly provided by the Plaintiff, to its assignor, on March 13, 2002 for injuries allegedly sustained in a motor vehicle accident on February 11, 2002. It is not disputed that at the time of the alleged accident the Plaintiff’s assignor was occupying a motor vehicle he had rented from “U-Haul.”^[FN1]

The action was commenced by the filing of a Summons and Complaint on April 17, 2006. The Plaintiff alleges, inter alia, that it provided health care services to its assignor on March 13, 2002; that it submitted a bill for those services to the Defendant (hereinafter referred to as “Republic Western”) subsequent to March 13, 2002; and that the bill remains unpaid. Issue was joined by the service of Republic Western’s Answer on or about June 1, 2007. Although the Republic Western’s Answer was more than one year overdue, the Plaintiff never moved for the entry of a default judgment and accepted the late service of Republic Western’s Answer. Republic Western’s Answer contains thirty-five (35) separate affirmative defenses. Many of these affirmative defenses are boilerplate and have no application to this action. They have no business being included in the Republic Western’s Answer. Nevertheless, Republic Western’s thirty-fifth (35th) affirmative defense alleges that the action is barred by the applicable statute of limitations. Based thereon, Republic Western now moves for an order, pursuant to CPLR § 3211(a)(5), dismissing the Complaint. The Plaintiff opposes the motion.

Republic Western avers that it does not have the NF-3 claim form filed with it by the Plaintiff, although Republic Western does not deny its receipt. Using the date of service of March 13, 2002, and giving the Plaintiff the benefit of all one-hundred eighty (180) days it then had to [*2]file its claim, plus the maximum of thirty (30) days Republic Western had to pay or deny this claim, Republic Western correctly asserts that the Plaintiff’s cause of action ripened no later than October 9, 2002.

Republic Western alleges that it and U-Haul are wholly owned subsidiaries of a Nevada corporation known as AMERCO. According to Republic Western, it “provides U-Haul with loss adjusting and claims handling through regional [sic] across North America[,]” (Puckett Affidavit 8/20/07, ¶ 7) and further alleges that it “does not issue a policy of insurance to the driver but rather covers U-haul for all claims against the self-insured.” (Puckett Affidavit 8/20/07, ¶ 9) Republic Western explains that “[w]hen a customer rents a U-Haul vehicle in New York State, Republic Western will insure the vehicle.” (Puckett Affidavit 8/20/07, ¶ 9) Based thereon, Republic Western declares that it is “the self-insurer for U-Haul” (Puckett Affidavit 8/20/07, ¶ 7) and that its obligations to pay no-fault first party benefits is imposed by statute or regulation. In this respect, Republic Western suggest that it is in the same position as the Motor Vehicle Accident Indemnification Corporation (hereinafter referred to as “MVAIC”), and is entitled to the application of the three (3) year statute of limitations provided in CPLR § 214(2).

Applying this three (3) year statute of limitations, Republic Western argues that the latest date by which the Plaintiff could commence this action, and still be timely, was October 19, 2005. According to Republic Western, having been commenced on April 17, 2006, the Plaintiff’s action is time barred and must be dismissed.

The Plaintiff argues, in the first instance, that Republic Western has failed to demonstrate that it is a “self-insured.” The Plaintiff suggests that the status of Republic Western and U-Haul as wholly owned subsidiaries of AMERCO does not confer self-insured status upon Republic Western. The Plaintiff further points to Republic Western’s acknowledgment that it “will insurer” and “covers” (Puckett Affidavit 8/20/07, ¶ 9) U-Haul vehicles. The Plaintiff further suggests that there is no legal basis upon which, and it is impossible for, Republic Western to be a “self-insurer” for another.

The Plaintiff alternatively argues, that even if Republic Western is found to be a self-insured, its obligations to pay for no-fault first party benefits is “firmly rooted in contract.” (Armao Affirmation 10/11/07, ¶ 12) Plaintiff argues that unlike MVAIC, whose obligations are strictly imposed by statute, Republic Western voluntarily chose to be a self-insured, obligating itself to provide no-fault first party benefits by virtue of Insurance Law § 5103 and the rental agreement between Plaintiff’s assignor and U-Haul. Under all of these circumstances, according to the Plaintiff, it is entitled to the application of the six (6) year statute of limitations provided for by CPLR § 213(2); and, Republic Western cannot receive the benefit of a shorter statute of limitations merely because it does not issue a written insurance policy.

In reply, contradicting its earlier statements, Republic Western alleges that “U-Haul provides the funding for losses regarding its vehicles – including the no fault benefits in question.” (Federici Affirmation 11/26/07, ¶ 4) Re-emphasizing its relationship with U-Haul and AMERCO, Republic Western notes that no insurance is sought from outside companies and that the three (3) corporations should collectively be viewed as a single self-insured entity. Republic Western posits that the question before the court is “whether the liability [to pay first party benefits] would not exist but for a statute.”[emphasis in original] (Federici Affirmation 11/26/07, ¶ 6) Republic Western answers this question by arguing that unlike “[t]raditional [*3]automobile insurance companies” (Federici Affirmation 11/26/07, ¶ 6) which issue policies of insurance, Republic Western is self-insured and “do[es] not issue policies containing the no-fault endorsement, and would not owe no-fault benefits but for Regualtion 68.”(Federici Affirmation 11/26/07, ¶ 6) This court does not agree.

Although claiming to be self-insured, Republic Western has failed to offer any competent proof supporting this claim. In fact, Republic Western’s proof appears to be to the contrary. At the outset, it is noted that Republic Western’s Answer fails to deny, and therefor admits, the allegation contained in paragraph “1” of the Plaintiff’s Complaint, which alleges: “Defendant is an insurance company licensed to do business in the State of New York.” The court also agrees with the Plaintiff that there is neither legal authority for, nor any logic to, Republic Western’s claim that it is actually the “self-insurer” of a separate legal entity.

Similarly, the business relationship among the corporate entities, Republic Western, U-Haul and AMERCO, does not establish Republic Western as a self-insured. In fact, the affidavit of Sharon Puckett, Republic Western’s claims representative and the AMERCO 10Q report upon which Republic Western relies, do more to establish Republic Western as an insurer than a self-insurer. As previously noted, Ms. Puckett advises this court that “[w]hen a customer rents a U-Haul vehicle in New York State, Republic Western will insure the vehicle.” (Puckett Affidavit 8/20/07, ¶ 9) She similarly advises that Republic Western “covers U-Haul.” (Puckett Affidavit 8/20/07, ¶ 9) Verifying that Ms. Puckett’s use of the words “insure” and “covers” were not used in error, the AMERCO 10Q report submitted by Republic Western advises that “Rep West is focused on providing and administering property and casualty insurance to U-Haul, its customers, its independent dealers and affiliate.”(Amerco 10Q Report, p. 51); “Rep West also underwrites components of the Safemove, Safetow and Safestor protection packages to U-Haul customers. We continue to focus on increasing the penetration of these products. The business plan for Rep West includes offering property and casualty products in other U-Haul related programs.” (Amerco 10Q Report, p. 53); “Premiums at Rep West increased $0.6 million due to increases in U-Haul related business.”(Amerco 10Q Report, p. 59); and, “Premium revenues [for Republic Western] were $5.4 million and $4.8 million for the quarters ended March 31, 2006 and 2005, respectively. U-Haul related premiums were $4.5 million and $3.9 million for the quarters ended March 31, 2005 and 2004, respectively.”(Amerco 10Q Report, p. 67)

That Republic Western’s claim to be a self-insurer is erroneous at best, and less than forthright at worst, is evidenced by the representations made by Republic Western in other litigation involving its status as an insurer. In Republic Western Insurance Company v. State, 985 S.W.2d 698, (Tex.App.-Austin1999) Republic Western and U-Haul brought an action seeking a declaration that they were not engaging in the unauthorized business of insurance. The State of Texas sought injunctive relief, restraining such insurance activities. In finding against Republic Western and U-Haul the Texas Court of Appeals noted, “U-Haul offers its rental customers three “Safe Protection” insurance packages” and “solicit[s] rental customers to purchase insurance and collect[s] premiums for Republic Western[.]” Regarding Republic Western’s activities, the court observed, “Republic Western … assist[s] U-Haul in the solicitation and effectuation of insurance, in the dissemination of coverage and rate information, and in the delivery of insurance contracts.”

Like the matter sub judice, NYC Medical and Neurodiagnostic, P.C. v. Republic Western Ins. Co., 8 Misc 3d 33, 798 NYS2d 309 (App. Term 2nd & 11th Dists. 2004) was an action [*4]involving a claim for no-fault first party benefits, where the court noted, ” “Plaintiff’s assignor was a passenger in a U-Haul vehicle insured by [Republic Western], an Arizona corporation.” In that action, Republic Western’s “New York claims manager submitted an affidavit in which he averred that [Republic Western] was an Arizona corporation … , that [Republic Western] was the sole insurer for U-Haul, Inc., an Arizona corporation, and that the policy was written and sold in Arizona.”

After reviewing, inter alia, an insurance policy between U-Haul and Amerco and an insurance identification card, the court found “A business automobile insurance policy had been issued by [Republic Western], an Arizona corporation, to its named insured, Amerco, also an Arizona corporation, indicating that there was a New York specific endorsement providing no-fault coverage. The Arizona Automobile Insurance Card for the vehicle showed that [Republic Western] was its insurer and that the insured was Amerco et al, including U-Haul.'”

Diagnostic Rehab. Medicine Service. v. Republic Western Ins., Co., 2003 WL 22888389 (Civ.Ct. Kings Co. 2003) consolidated six (6) actions to recover no-fault first party benefits. Once again, Republic Western’s New York Claims Manager represented to the court “that Republic Western is an Arizona corporation and is the sole insurer for U-HAUL INC., an Arizona Corporation.'” Quoting from NYC Medical and Neurodiagnostic, P.C. v. Republic Western Ins. Co., supra ., and consistent with some of the representations made by Republic Western in the present matter, the court found, ” At least one equipment rental contract delivered to a renter from a U-Haul facility in the city of New York stated under the heading liability insurance’ that U-Haul customers are insured by a business auto policy, providing limits up to the minimum financial responsibility law of the state where the accident occurs[;]'” and, even more to the point, ” Under the terms of the insurance policy issued to U-Haul, [Republic Western] has agreed to provide no-fault benefits to any person injured in U-Haul’s vehicles ….”

Based upon all of the foregoing, even if this court were to accept Republic Western’s underlying premise, that self-insurers are to be held to the three (3) year statute of limitations provided for by CPLR § 214(2), Republic Western has failed to adequately demonstrate that it is a self-insurer. For this reason alone Republic Western’s motion should be denied. This failure of proof notwithstanding, it is the opinion of this court that even as a self-insurer, Republic Western would be bound by the six (6) year statute of limitations provided for by CPLR § 213(2).

Accepting for the sake of argument that Republic Western has adequately demonstrated its status as a self-insurer, Republic Western relies upon two (2) lower court decisions, one reported, Alleviation Supplies Inc. v. Enterprise Rent A Car, 12 Misc 3d 787, 819 NYS2d 404 (Civ. Ct. Richmond Co. 2006) and one unreported, AL Medical & Surgical Supplies, Inc. v. Republic Western Insurance Company, Index No. 48145/06, (Civ. Ct. Bronx Co. 2007), to support its statute of limitations argument. Recognizing the application of a six (6) year statute of limitations in actions seeking to recover no-fault first party benefits owed under a policy of insurance, the court in Alleviation Supplies Inc. v. Enterprise Rent A Car, supra . held, “there is not logical reason to view an action against a self-insurer as a breach of contract action, in that the self-insurer’s liability derives solely from statute and regulations promulgated pursuant to statute.” The court in AL Medical & Surgical Supplies, Inc. v. Republic Western Insurance Company, supra . reached the same conclusion. This court respectfully disagrees. This court is not bound by either of the decisions relied upon by Republic Western; and, for the reasons set [*5]forth at length below, respectfully declines to follow them.

As indicated at the outset of this decision, the Plaintiff seeks the recovery of no-fault first party benefits for medical services allegedly provided to its assignor who was allegedly injured while occupying a vehicle he had leased from U-Haul. There is likewise no dispute that there was a contract between the Plaintiff’s assignor, as lessee and U-Haul, as owner/lessor. As will be discussed, by virtue of this rental agreement the self-insured owner/lessor stands in the same shoes as a third-party insurer with regard to its obligations to provide no-fault first party benefits. Liability is not imposed simply by virtue of the owner/lessors’ status as a self-insurer, but “because of the terms of self-insurance that it agreed to in its rental agreement ….” Guercio v. Hertz Corporation, 40 NY2d 680, 389 NYS2d 568 (1976) Contrary to the argument of Republic Western, self-insurers are not analogous to MVAIC.

As noted in Motor Vehicle Accident Indemnification Corporation v. Aetna Casualty & Surety Company, 89 NY2d 214, 652 NYS2d 584 (1996), “MVAIC itself is a statutory creation ….” If not for Insurance Law, Article 52 MVAIC would not exist. As Insurance Law § 5201 makes clear, MVAIC was created by the legislature due to its belief that:

the motor vehicle financial security act in the vehicle and traffic law, … , fails to accomplish its full purpose of securing innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by: [uninsured vehicles, unidentified vehicles which leave the scene, stolen vehicles, vehicles operated without the owners permission, insured motor vehicles where the insurer disclaims coverage and unregistered vehicles.]

In contrast, self-insurers, while statutorily permitted to exist, are not created by statute. Self-insured vehicle owners/lessors, in an effort to comply with the Motor Vehicle Financial Security Act, voluntarily assume the obligations imposed upon all insurers by assuring payment of benefits and judgments which may be due thereunder. See: ELRAC, Inc. v. Ward, 96 NY2d 58, 724 NYS2d 692 (2001); Nassau Insurance Company v. Guarascio, 82 AD2d 505, 442 NYS2d 83 (2nd Dept. 1981) “By electing to be self-insured, [they] stand[] in the same position as any other insurer under the No-Fault Law (citation omitted).” Matter of State Insurance Fund (State), 212 AD2d 98, 628 NYS2d 985 (4th Dept. 1995); See also: McKenna v. Nassau County, 61 NY2d 739, 472 NYS2d 913 (1984) A review of the statutory and regulatory enactments obligating motor vehicle owners to maintain automobile insurance demonstrates that these obligations imposed upon self-insurers are no different than the obligations and policy endorsements imposed upon insurance companies, and should be treated the same.

The maintenance of motor vehicle insurance is compulsory in New York State. VTL Article 6, known as the Motor Vehicle Financial Security Act, provides:

The legislature is concerned over the rising toll of motor vehicle accidents and the suffering and loss thereby inflicted. The legislature determines that it is a matter of grave concern that motorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them. The legislature finds and declares that the public interest can best be served in satisfying the insurance requirements of this article by private enterprise operating in a competitive market to provide proof [*6]of financial security through the methods prescribed herein.

“Both statute and public policy require that motorists be insured against the risks of automobile travel(citations omitted).”General Accident Insurance Group v. Cirucci, 46 NY2d 862, 414 NYS2d 512 (1979) Simply stated, “[t]he whole object of compulsory automobile insurance is to assure the protection of members of the public, who are innocent victims of motor vehicle accidents, by providing compensation for and protection from tortious wrongs committed against them.”

While VTL § 321 provides that Article 6 “shall not apply to any motor vehicle for the operation of which security is required to be furnished under section three hundred seventy of this chapter,” e.g. lessors, VTL § 370(1) mandates that “Every person, firm, association or corporation engaged in the business of carrying or transporting passengers for hire … except … owned and operated by a municipality, … shall file with the commissioner of motor vehicles … a corporate surety bond or a policy of insurance, … conditioned for the payment of a minimum sum, hereinafter called minimum liability, …” These same obligations are placed upon those engaged in the business of renting or leasing vehicles to be operated upon the public roadways by virtue of VTL § 370(3). See: ELRAC, Inc. v. Ward, supra .; Allstate Insurance Company v. Shaw, 52 NY2d 818, 436 NYS2d 873 (1980)

In lieu of providing a surety bond or policy of insurance, an entity “engaged in the business of renting or leasing motor vehicles, having registered in this state more than twenty-five motor vehicles subject to the provisions of this section and who qualifies …, may file a certificate of self-insurance.” VTL § 370(3); ELRAC, Inc. v. Ward, supra . An out of state self-insurer, who does not meet this criteria may, nevertheless, provide proof of qualifications “under self-insurance provisions of the laws of the jurisdiction of such non-resident.” VTL § 311(3); Purex Industries,

Inc./Baron Blakesley Div. v. Nationwide Mutual Ins. Co., 110 AD2d 67, 493 NYS2d 176 (2nd Dept. 1985)^[FN2] Whether coverage is provided by a surety bond, a policy of insurance or a self-insurer, the coverage extends to one operating the vehicle with the vehicle owner’s permission. ELRAC, Inc. v. Ward, supra .; Insurance Law § 3420(e); Insurance Law § 5103

While rental vehicles are excluded from Article 6 of the Vehicle and Traffic Law, Section 321(2) thereof nevertheless provides, “that any motor vehicle exempted in subdivision one of this section from the provisions of any portions of this article shall be subject to the provisions of article fifty-one of the insurance law.”Article 51 of the Insurance Law, known as the “Comprehensive Motor Vehicle Reparations Act,” is colloquially known as “the no-fault law.”

Insurance Law § 5103(a) provides, in pertinent part:

Every owner’s policy of liability insurance issued on a motor vehicle in satisfaction of the requirements of article six or eight of the vehicle and traffic law shall also provide for; every owner who maintains another form of financial security on a motor vehicle in satisfaction of the requirements of such articles shall be liable for; and every owner of a motor vehicle required to be subject to the provisions of this article by subdivision two of section three hundred twenty-one of the vehicle and traffic law shall be liable for; the payment of first party benefits to: (1) Persons, other [*7]than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.

As can be seen, no-fault coverage is part and parcel of the liability coverage provided, whether by surety bond, policy of insurance or self-insurance. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Keith v. Liberty Mutual Fire Insurance Company, 118 AD2d 151, 503 NYS2d 441 (2nd Dept.1986)

Further imposing these obligations on all forms of motor vehicle financial security, Insurance Law § 5103(d) provides “Insurance policy forms for insurance to satisfy the requirements of subsection (a) hereof shall be subject to approval pursuant to article twenty-three of this chapter. Minimum benefit standards for such policies and for self-insurers, and rights of subrogation, examination and other such matters, shall be established by regulation pursuant to section three hundred one of this chapter.”

Similarly, Insurance Department Regulation 68, codified at 11 N.Y.C.R.R. part 65, implements the no-fault law. Medical Society of the State of New York v. Serio, 100 NY2d 854, 768 NYS2d 423 (2003) Among its provisions, relevant herein, Regulation 68 provides, “Every owner’s policy of liability insurance issued in satisfaction of the minimum requirements of article 6 or 8 of the Vehicle and Traffic Law and article 51 of the Insurance Law shall contain provisions providing minimum first-party benefits ….” 11 N.Y.C.R.R. § 65-1.1(a) Self-insurer is defined by 11 N.Y.C.R.R. § 65-2.1 as “any person, firm, association or corporation that: (1) maintains a form of financial security other than an owner’s automobile insurance policy in satisfaction of article 6 or 8 of the New York Vehicle and Traffic Law; or (2) is subject to article 51 of the New York Insurance Law as provided for in section 321 of the New York Vehicle and Traffic Law.” 11 N.Y.C.R.R. § 65-2.2 provides, “In accordance with the provisions of article 51 of the New York Insurance Law and this Part, a self-insurer shall pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle within the United States of America, its territories or possessions, or Canada.” 11 N.Y.C.R.R. § 65-2.2(j) (3) defines an eligible injured person, in pertinent part, as “any other person who sustains personal injury arising out of the use or operation of the self-insured motor vehicle in the State of New York while not occupying another motor vehicle.” The rules for the settlement of claims for first party benefits shall apply to insurers and self-insurers alike. 11 N.Y.C.R.R. § 65-3.1

As is apparent from the foregoing, to suggest that motor vehicle owners/lessors, who choose to operate as self-insurers, should benefit from the shorter statute of limitations provided by CPLR § 214(2), for “liability … created or imposed by statute except as provided in sections 213 and 215”, because they do not physically issue a policy of insurance or a no-fault endorsement, overlooks the fact that the very same obligations are imposed upon insurance companies by mandating that their policies contain such endorsements. Insurance Law § 5103(a); 11 N.Y.C.R.R. § 65-1.1(a) Moreover, Insurance Law § 5103(h) provides that “Any policy of insurance obtained to satisfy the financial security requirements of article six or eight of the vehicle and traffic law which does not contain provisions complying with the requirements of this article [Article 51], shall be construed as if such provisions were embodied therein.”

As recently recognized in Mandarino v. Travelers Property Casualty Ins. Co., 37 AD3d 775, [*8]831 NYS2d 452 (2nd Dept. 2007), “the inclusion of terms in an insurance contract, which might be mandated by various statutes or regulations, does not necessarily alter the fundamentally contractual nature of the dispute between the insured (or is or her assignee), on the one hand, and his or her no fault’ insurer on the other hand.” In such circumstance, this liability is no less created or imposed upon one issuing a policy of insurance than it is upon a self-insurer who contracts for the leasing of its vehicle, which carries with it the assurance of its financial ability to satisfy the Motor Vehicle Financial Security Act and to pay judgments and claims. See: Guercio v. Hertz Corporation, supra .; ELRAC, Inc. v. Ward, supra .; Nassau Insurance Company v. Guarascio, supra . The court can see no logical reason why an insurer who contracts for the mandated coverage should be subjected to a six (6) year statute of limitations, while a self-insured owner/lessor who contracts for the lease of its vehicle, may limit its liability to those actions commenced within three (3) years of their accrual. The logical extension of such a holding would be to encourage insurance companies to refrain from issuing policies of insurance or excluding no-fault endorsements therefrom, allowing them to argue that their obligations are imposed by statute alone, reducing their exposure, in contravention of the statutory and regulatory scheme.

This, in fact, was the same position recently taken by the Appellate Division, Second Department in ELRAC, Inc. v. Suero, 38 AD3d 544, 831 NYS2d 475 (2nd Dept. 2007). While that case involved a proceeding to recover “uninsured motorist” benefits from the self-insured rental company, rather than no-fault first party benefits, the statutory and regulatory schemes enacting and implementing the two (2) endorsements are the same; and, the court’s reasoning for applying a six (6) year statute of limitations, as opposed to a three (3) year statute of limitations, to a self-insurer is indistinguishable.

In the same way that Insurance Law § 5103(a) requires the inclusion of no-fault first party benefits in all forms of motor vehicle financial security, Insurance Law § 3420(f)(1) requires the inclusion of “uninsured motorist” coverage. Just as Insurance Law § 5103(h) will read a no-fault endorsement into a policy of insurance which has omitted same, so too will Insurance Law § 3420(f) (1) read in an “uninsured motorist” endorsement which has been omitted. “Uninsured motorist” coverage, like no-fault coverage, will apply regardless of whether liability coverage is provided by a surety bond, an insurance policy or a self-insurer. VTL § 321(2); VTL § 370; Manhattan and Bronx Surface Transit Operating Authority v. Evans, 95 AD2d 470, 467 NYS2d 387 (2nd Dept.1983); New York City Transit Authority v. Thom, 52 NY2d 1032, 438 NYS2d 504 (1981); The right to obtain such mandated coverage “from a self-insurer is no less than the corresponding right under a policy issued by an insurer (citations omitted).” Application of Country-Wide Insurance Company, 96 AD2d 471, 464 NYS2d 786 (1st Dept.1983) aff’d 62 NY2d 748, 476 NYS2d 831 (1984)

Given the statutory and regulatory provisions providing for the inclusion of “uninsured motorist” coverage in all forms of motor vehicle financial security, it has been well recognized that “[a]lthough the endorsement is required by the Insurance Law, the obligation of the insurance company is contractual rather than statutory in nature.” State Farm Mutual Automobile Insurance Company v. Basile, 48 AD2d 868, 368 NYS2d 584 (2nd Dept. 1975); In re St. Paul Fire & Marine Insurance Company (Vanguard Systems Resources, Inc., 152 AD2d 497, 544 NYS2d 133 (1st Dept.1989); Manhattan and Bronx Surface Transit Operating Authority v. Evans, supra . Applying this same reasoning in ELRAC, Inc. v. Suero, supra ., the court held that a self-insured car rental [*9]company will be subject to the six (6) year statute of limitations, noting, “From an injured claimant’s perspective, [t]he right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer’ (Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471, 472, 464 NYS2d 786, affd. 62 NY2d 748, 476 NYS2d 831, 465 NE2d 370; see Matter of Allstate Ins. Co. v. Shaw, 52 NY2d 818, 820, 436 NYS2d 873, 418 NE2d 388).” For all of the reasons set forth hereinabove, this court can see no logical reason why the same is not true for no-fault benefits provided by a self-insured rental company.

Accordingly, it is the holding of this court that a claim for no fault first party benefits against a self-insured motor vehicle rental company will be subject to the six (6) year statute of limitation provided by CPLR § 213(2); and, the motion of Republic Western to dismiss this action as untimely is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

January 3, 2008

___________________________

ANDREW M. ENGEL

J.D.C.

Footnotes

Footnote 1: Defendant identifies the leasing company as “U-Haul International, Inc.”

Footnote 2: Republic Western has not offered any proof of having done so herein.

Supreme Court, Nassau County

000930/07

Plaintiffs Attorney

Joseph Henig, PC

1598 Bellmore Ave.

Bellmore, NY 11710

Defendants Attorney

Martin Fallon & Mulle

115 Broadway

New York, NY 10006

Karen V. Murphy, J.

Plaintiffs move this Court for an order pursuant to CPLR § 3212, granting Summary Judgment in their favor. Defendant opposes the requested relief and asks the Court, pursuant to CPLR § 3212(b), to grant Summary Judgment in its favor or, in the alternative, grant a hearing to determine the amount to which they are entitled.

To establish a prima facie entitlement to summary judgment as a matter of law, the plaintiff hospital is required to submit evidentiary proof that the prescribed billing forms were mailed and received, and that payment of no fault benefits is overdue. Insurance Law § 5106(a); 11 N.Y.C.R.R. 65.15(g)(3); (Mount Sinai Hospital v. Joan Service Corp., [*2]

22 AD3d 649, 803 NYS2d 102 (2d Dept., 2005), citing Mary Immaculate Hosp.

v. Allstate Ins. Co., 5 AD3d 742, 743, 774 NYS2d 564 (2d Dept., 2004); St. Luke’s Roosevelt Hosp. v. American Transit Ins. Co., 1 AD3d 498, 767 NYS2d 252 (2d Dept., 2003); St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743, 757 NYS2d 457 (2d Dept., 2003); New York and Presbyterian Hospital v. Allstate Ins. Co., 295 AD2d 412, 743 NYS2d 733 (2d Dept., 2002). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the Defendant. (See Makaj v. Metropolitan Transportation Authority, 18 AD3d 625, 796 NYS2d 621 [2d Dept., 2005]).

With respect to Plaintiff St. Vincent’s Hospital of Richmond, a/a/o Ednita Lorenzo, it is undisputed that Ms. Lorenzo was admitted to the hospital on December 19, 2005 and discharged on December 30, 2005. Defendant has not challenged that the NYS Form NF-5 was mailed on October 27, 2006 and received by them on October 30, 2006. According to the August 9, 2007 affidavit of Susan Weinstein, a biller and account representative for Hospital Receivable Systems, Inc., a defective denial of claim form dated November 14, 2006 was issued, containing an incorrect amount of the bill and the amount in dispute. It is also undisputed that on November 27, 2006 Defendant paid the claim in the amount of $9,913.37. There is a dispute as to an unpaid balance of $13,349.21, plus statutory interest and attorney’s fees.It is Defendant’s position, supported by the Affidavit of Gina Pisano, Claim representative for Defendant, that they sent a proper partial denial of the claim, for bills in excess of $9,913.37, as the charges were in excess of the proper no fault fee schedule. There is no dispute that the partial denial was sent in a timely fashion.

Simultaneous with Defendant making payment in the amount of $9,913.37, a second check in the same amount was sent to Plaintiff and cashed. Defendant argues that this was a clerical error and seeks a judgment in its favor for this amount. In the alternative, Defendant seeks a hearing to determine the proper fee for the services rendered by it under the New York no fault fee schedule. Plaintiff does not address the alleged over payment in its opposition papers.

It is undisputed that the denial was sent in a timely fashion. This Court finds a question of fact exists with respect to whether or not the fees charged were in excess of the Workers’ Compensation fee schedule. (See A.B. Med. Servs., PLLC v. American Tr. Ins. Co., 15 Misc 3d 132(A), 839 NYS2d 431 (App. Term 2d & 11th Judicial Dists., 2007); see also Robert Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co. 13 Misc 3d 172, 822 NYS2d 378 (Civil Ct., City of NY, 2006) [The Workers’ Compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for No-Fault benefits.]) A hearing is necessary to determine how much should have been billed. While there was no opposition to Defendant’s cross motion with respect to the payment of $9,913.37, questions of fact exist with respect to the amount due, which will be resolved at the hearing. Summary judgment is therefore denied to both parties.

This matter is referred to the Calendar Control Part (CCP), for a hearing to be held on February 28, 2008 at 9:30 a.m.. The Plaintiff shall file and serve a Note of Issue, together with a [*3]copy of this Order, on all parties and shall serve copies of same, together with receipt of payment, upon the Calendar Clerk of this Court within twenty (20) days of the date of this Order. The directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer, or a Court Attorney/Referee, as he or she deems appropriate.

With respect to the cause of action on behalf of Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, Plaintiff alleges that these actions are joined as they are covered under a uniform policy of insurance and involve the interpretation of the same provisions of the Insurance Law. However, no policy was attached to the instant motion and there is nothing before this Court to show any connection between the Plaintiffs or their claims.

CPLR § 1002(a) provides for a permissive joinder of Plaintiffs where they “assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences . . . if any common question of law or fact would arise.” While it is true that the same sections of the Insurance Law are applicable in the instant action, Plaintiffs have failed to satisfy the first prong of CPLR § 1002(a).

The Court sua sponte severs the Second Cause of Action and grants leave to Plaintiff Lenox Hill Hospital, a/a/o Elizabeth Rivera, to purchase an Index Number and proceed separately on the Cause of Action against State Farm Mutual Automobile Insurance Company. (Mount Sinai Hospital v. MVAIC, 291 AD2d 536, 738 NYS2d 247 [2d Dept., 2002]). Severance is a matter of judicial discretion based upon a weighing of all the circumstances in a particular case. The First and Second Causes of Action herein are completely unrelated in time, place, party and circumstance.

The foregoing constitutes the Order of this Court.

Dated: December 31, 2007

Mineola, NY

J. S. 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, Kings County (Arlene Bluth, J.), entered December 1, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment on the ground of
lack of medical necessity or, in the alternative, on the ground that the assignor was not injured in a covered accident. The court below denied plaintiff’s motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s corporate officer was legally insufficient and granted defendant’s cross motion for summary judgment due to plaintiff’s failure to proffer evidence rebutting the peer review report annexed to defendant’s cross motion. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to [*2]establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Plaintiff’s contention that defendant was not entitled to summary judgment on its cross motion because the NF-10 denial form is fatally defective lacks merit. Inasmuch as defendant’s omissions from the NF-10 denial form in this matter are neither “basic” (cf. Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]) nor “numerous” (cf. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]), they do not render the denial form fatally defective.

Further, defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant’s cross motion for summary judgment (A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; see 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]).

Weston Patterson, J.P., and Belen, 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 : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
DELTA DIAGNOSTIC RADIOLOGY, P.C.
a/a/o FRANCISCA CHANEYFIELD,

Appellant,

-against-
AMERICAN TRANSIT INSURANCE CO., [*3]

Respondent.

Golia, J., concurs with the result only, in the following memorandum:
While I am in total agreement 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. I note an important legal issue which is an integral part of the majority opinion, that is, the concept that the failure of an answering party to respond to the facts presented by the moving party requires the court to accept those facts as proven.
Decision Date: December 27, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), dated May 16, 2006, deemed an appeal from the judgment entered September 20, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,650.

Judgment reversed without costs and matter remanded to the court below for a new trial.

At the commencement of the trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff’s prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff’s claims were denied, based upon peer reviews, on the ground of lack of medical necessity. After defendant announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff’s claims were denied. The court granted plaintiff’s motion to preclude testimony by defendant’s medical expert. After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued. [*2]

Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant’s denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff’s services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify (see Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept]).

In light of the foregoing, the judgment is reversed and a new trial ordered.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007

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.), entered June 15, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff summary judgment upon that portion of its cause of action which sought to recover statutory interest and attorney’s fees on its $879.73 claim, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed insofar as appealed from, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers did not proffer facts in admissible form so as to establish plaintiff’s prima facie entitlement to judgment as a matter of law. The court denied plaintiff’s motion, finding that defendant timely denied plaintiff’s claims and that there was an [*2]issue of fact as to whether the services rendered were medically necessary. The instant appeal by plaintiff ensued.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, defendant’s litigation representative conceded receipt of plaintiff’s claim for $879.73
and that the denial of this claim was not issued within the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). The litigation representative further stated that, as a result, defendant thereafter paid the claim in its entirety as well as what it believed to be the accrued interest. Plaintiff correctly asserts that it was entitled to summary judgment awarding it statutory interest and attorney’s fees in light of defendant’s admissions and the fact that the payment was made after this action was commenced (see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [1994]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, 105-106 [App Term, 2d & 11th Jud Dists 2007]; see also Insurance Department Regulations [11 NYCRR] § 65-4.6 [e]; 2003 Ops Ins Dept No. 03-02-31 [www.ins.state.ny.us/ogco2003/rg030231.htm]).

Consequently, plaintiff’s motion for summary judgment is granted to the extent of awarding it summary judgment upon that portion of its cause of action seeking statutory interest and attorney’s fees on its claim for $879.73, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s
fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007

—[*1] Goldberg Segalla, L.L.P., Albany (Stuart Bodoff of Rivkin Radler, L.L.P., Uniondale, of counsel), for appellant.

Law Office of Craig Meyerson, Latham (Craig Meyerson of counsel), for respondents.

Mugglin, J. Appeals (1) from three orders of the Supreme Court (Pulver, Jr., J.), entered January 12, 2007, January 26, 2007 and April 16, 2007 in Greene County, which, among other things, granted plaintiffs’ cross motion for summary judgment on certain causes of action, and (2) from the judgment entered thereon.

Plaintiffs, two psychological services providers, sued defendant to recover on no-fault claims assigned to them by individuals insured by defendant who had been injured in automobile accidents. At issue on this appeal is the grant of summary judgment to plaintiffs on certain causes of action, the computation of interest thereon and the award of counsel fees. With respect to the first issue, defendant argued that plaintiffs failed to establish standing to commence the action by reason of their failure to submit documentation establishing the assignment of the claims to them. Defendant’s counsel has advised that, in light of the Court of Appeals decision in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312 [2007]), this issue has been withdrawn.

Turning to the remaining arguments, we first reject defendant’s contention that Supreme Court improperly awarded interest to plaintiffs by not tolling the interest for the period between 30 days after plaintiffs received the claim denial until plaintiffs commenced this action. Since [*2]defendant failed to raise this challenge to the proposed judgment before Supreme Court, the issue is unpreserved for our review (see Ferran v Dwyer, 252 AD2d 758, 759 [1998]; Hopper v Lockey, 241 AD2d 892, 893-894 [1997]). In any event, the argument is meritless. Interest on untimely paid no-fault claims is calculated at the rate of 2% per month, compounded, commencing 30 days after proper presentment of the claim (see 11 NYCRR former 65.15 [h] [1]; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501, 501 [1994]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339 [1994]). Interest will be stayed only in those circumstances where a claimant has failed to submit the claim to arbitration or to commence an action within 30 days after receipt of the timely denial of the claim and does not, thereafter, begin to accrue until action is taken (see East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, 106 [2007]). Here, defendant did not issue a proper and timely denial to plaintiffs’ no-fault claims and, thus, defendant is not entitled to the benefit of the tolling provision. This interpretation of the regulatory scheme promotes the prompt resolution and compensation of claims and prohibits any reward to a “dilatory insurance company” (Elmont Open MRI & Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 15 Misc 3d 552, 558 [2007]). Thus, to avoid penalizing injured parties and to encourage the prompt resolution of claims, insurance companies are not entitled to a tolling of the accumulation of interest where they have failed to pay or properly deny a claim within the required time limits (see Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]).

Finally, Supreme Court did not err in awarding counsel fees on a per claim basis rather than a per assignor basis. When forced to commence an action to compel the payment of a proper no-fault claim, a claimant is entitled to recover counsel fees in the sum of 20% of the amount of first-party benefits, plus interest, subject to a maximum fee of $850 (see Insurance Law § 5106 [a]; 11 NYCRR former 65.17 [b] [6] [v]; 65.18 [f] [5]). Notably, the Superintendent of Insurance issued an opinion letter on October 8, 2003 that counsel fees are calculated on a per assignor basis (see Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]; Marigliano v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 1079 [2006]). We conclude that such opinion letter is not an appropriate interpretation of the statute. Although we ordinarily give deference to the agency’s interpretation of its own regulations, such deference need not be accorded where, as here, the interpretation conflicts with the explicit language of the controlling statute (see Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 766, 774 [2007]; Alpha Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 673, 678 [2006]).

The Superintendent’s interpretation undermines the goal of the no-fault law to fully compensate a claimant for economic loss resulting from the wrongful denial of a claim and wastes judicial assets by encouraging the commencement of multiple actions in order to recover the maximum available counsel fees (see Midwood Total Rehab. Med., P.C. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 480, 482 [2007]). Moreover, in spite of the Superintendent’s opinion letter, the well-settled case law is that the statute requires payment of counsel fees on a per claim basis (see Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d at 772; Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co., 15 Misc 3d 576 [2007]; Alpha Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d at 673; Willis Acupuncture, P.C. v Government Empls. Ins. Co., 6 Misc 3d 1002[A], 2004 NY Slip Op 51702[U] [2004]).

Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the orders and judgment are affirmed, with costs.

[*1]

Supreme Court, Appellate Term, First Department, December 19, 2007

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Ioanna Olivia Zevgaras of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**18 Misc 3d at 228} OPINION OF THE COURT

Per Curiam.

Order, dated June 16, 2006, reversed, with $10 costs, defendant’s motion for summary judgment granted, and complaint dismissed. The clerk is directed to enter judgment accordingly.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer’s affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff’s claim for first party no-fault benefits lacked medical necessity. In opposition, plaintiff relied upon an attorney’s affirmation accompanied by a single, unsworn and undated doctor’s report, which was not properly before the court and should not have been considered (see Grasso v Angerami, 79 NY2d 813 [1991]; Black v Regalado, 36 AD3d 437 [2007]; Henkin v Fast Times Taxi, 307 AD2d 814 [2003]). While a physician’s affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]), an attorney’s affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence. In any event, even if considered, the unsworn report of plaintiff’s doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

McKeon, J.P., McCooe and Davis, JJ., concur.

—[*1] Goldman & Grossman, New York, N.Y. (Jay S. Grossman and Eleanor R. Goldman of counsel), for appellant.

Jeffrey H. Schwartz, New York, N.Y., for respondents.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Held, J.), dated June 26, 2007, which denied the petition.

Ordered that the order is reversed, on the law, with costs, and the petition to permanently stay the arbitration is granted.

The Supreme Court erred in denying the petition for a permanent stay of arbitration since the respondents failed to file a sworn statement with the petitioner insurance company within 90 days of the alleged hit-and-run accident, in accordance with the requirement of the uninsured motorist endorsement of the subject insurance policy. The respondents thus failed to satisfy a condition precedent of coverage under the policy, and are not entitled to arbitrate their claim seeking coverage (see Matter of Eveready Ins. Co. v Mesic, 37 AD3d 602 [2007]; Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480, 481 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636, 637 [1995]). “Moreover, the fact that the petitioner received some notice of the accident by way of an application for no-fault benefits did not negate the breach of the policy requirement” (Matter of Eveready Ins. Co. v Mesic, 37 AD3d at 603; see Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461 [2005]; Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 [1995]). [*2]

The petitioner’s remaining contention need not be addressed in light of our determination. Ritter, J.P., Florio, McCarthy and Dickerson, JJ., concur.