—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for appellant-respondent.

Law Office of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent-appellant.

Cardona, P.J. Cross appeals from an order of the Supreme Court (Bradley, J.), entered October 6, 2006 in Ulster County, which, among other things, vacated an inquest and denied defendant’s motion to dismiss the complaint.

Plaintiff was injured while driving a vehicle insured by defendant. After initially paying plaintiff no-fault insurance benefits, defendant terminated any additional payments citing plaintiff’s failure to appear for independent medical examinations. Plaintiff then commenced this action to recover benefits allegedly owed to her.

Supreme Court granted plaintiff’s subsequent motion for summary judgment and directed plaintiff to submit a proposed judgment. Defendant did not object to the judgment, which was then adopted by Supreme Court. Thereafter, defendant successfully moved to vacate the judgment based upon plaintiff’s improper service and filing thereof, and Supreme Court granted its request for an inquest on the issue of damages.

At the inquest, defendant moved to dismiss the complaint. Supreme Court denied that motion, without prejudice, but vacated the inquest, determining that it was premature as the [*2]issues raised in the motion required further discovery. These cross appeals ensued, with defendant contending that its motion to dismiss should have been granted, and plaintiff arguing that Supreme Court should not have vacated the inquest.

Defendant argues four grounds in support of its motion to dismiss the complaint. First, it contends that plaintiff’s purported assignment of her right to receive benefits deprived her of standing to commence this action. As an objection to standing must be made by a preanswer motion to dismiss or asserted as a defense in the answer (see CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657 [1983]), defendant’s motion on this basis is untimely. Next, defendant contends that plaintiff did not timely submit certain claims for no-fault benefits. However, an insurer must ” ‘stand or fall upon the defense upon which it based its refusal to pay’ ” and cannot later create new defenses by requiring an insured’s compliance with the policy provisions (King v State Farm Mut. Auto Ins. Co., 218 AD2d 863, 865 [1995], quoting Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, 194 [1957]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198-200 [1997]). Having initially denied plaintiff’s claims based on her failure to attend independent medical examinations, defendant cannot now base a motion to dismiss on this new ground.

As the third ground for dismissal, defendant claims that because plaintiff has not suffered out-of-pocket damages for which it would be obligated to pay, plaintiff has not stated a cause of action. However, 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]). Plaintiff incurred such expenses at the time that she received treatment for her injuries (see e.g. Rubin v Empire Mut. Ins. Co., 25 NY2d 426 [1969]; see also 11 Couch on Insurance 3d § 158:12) and the fact that the bills may have already been paid by other sources, including her private health insurer, does not extinguish defendant’s obligation. Finally, while defendant correctly contends that it is not precluded from challenging plaintiff’s bills on the basis of noncoverage (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199-202; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]; King v State Farm Mut. Auto. Ins. Co., 218 AD2d at 865), we find that defendant’s motion submissions were not sufficient to establish its entitlement to dismissal on this basis.

In light of the foregoing, we conclude that Supreme Court properly denied defendant’s motion to dismiss. However, we discern no basis to vacate the inquest and order more discovery on the above issues. Neither party requested additional discovery before Supreme Court or argues for it on appeal and, absent any clear need for further discovery, we conclude that “all proof necessary to determine the appropriate damage award was before the court” (Domino Media v Kranis, 215 AD2d 278 [1995]). Accordingly, the matter is remitted to Supreme Court to make a determination of damages (see id.).

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as vacated the inquest and ordered additional discovery; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

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

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

In an action to recover no-fault medical payments under insurance contracts, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated April 5, 2007, which denied its motion for summary judgment on its first cause of action, and conditionally granted the defendant’s cross motion for summary judgment dismissing the first cause of action.

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

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

On or about May 4, 2006 the plaintiff, as Forthmuller’s assignor, sent the defendant, inter alia, a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. The [*2]defendant received the hospital facility form on May 8, 2006. Three days later, on May 11, 2006, the defendant sent the plaintiff a letter indicating that benefits payments remained delayed pending receipt of Forthmuller’s medical records, which had been previously requested. The defendant alleges that after it received the plaintiff’s medical records on May 15, 2006, it learned that Forthmuller had first been treated after the accident at Sound Shore. Accordingly, on May 20, 2006 the defendant sent Sound Shore a verification request seeking its medical records pertaining to Forthmuller’s treatment, including any blood alcohol serum toxicology test results. The defendant received Sound Shore’s medical records on June 29, 2006 and on July 12, 2006, it denied the plaintiff’s claim upon the ground that Forthmuller was driving while intoxicated at the time of the accident.

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

“[Where] a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim” (Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997]). In this regard, 11 NYCRR 65-3.8 (g) provides that “if an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident.” This provision also states that proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished to the insurer. Furthermore, pursuant to 11 NYCRR 65-3.5 (c), “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its first cause of action by submitting, inter alia, the requisite no-fault billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to either pay the bill or issue a timely denial of claim form (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]). In opposition to the motion, however, the defendant raised a triable issue of fact as to whether it timely denied the claim by submitting evidence that a verification [*3]request seeking information regarding Forthmuller’s alleged intoxication was timely and properly sent to Sound Shore (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In addition, the defendant also raised a triable issue of fact as to whether Forthmuller was intoxicated at the time of the accident and whether his intoxication caused the accident by submission of the Sound Shore laboratory results and a police accident report. Although the Sound Shore records were not in admissible form both because they were not certified and because the defendant failed to lay a proper foundation by proffering evidence of satisfactory care in the collection of Forthmuller’s blood sample and its analysis (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Marigliano v City of New York, 196 AD2d 533 [1993]; Fafinski v Reliance Ins. Co., 106 AD2d 88, 91-92 [1985], affd 65 NY2d 990 [1985]), the Supreme Court properly considered this evidence in opposition to the plaintiff’s motion (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). In addition, the police accident report describing the circumstances of the accident was properly considered to the extent that it was based upon the personal observations of the police officer present at the scene and who was under a business duty to make it (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]).

However, the Supreme Court should not have conditionally granted the defendant’s cross motion pending receipt of a certified toxicology report from Sound Shore. Even if the subject lab results were contained in certified hospital records, the defendant failed to lay a proper foundation for the admission of this evidence. Absent a proper foundation, certified laboratory results would be insufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). Moreover, the defendant also failed to make a prima facie showing that Forthmuller’s alleged intoxication was a proximate cause of the accident (id.; see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]). Since the defendant failed to make a prima facie showing, its cross motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [*4]

Motion by the appellant, inter alia, to strike stated portions of the respondent’s brief on an appeal from an order of the Supreme Court, Nassau County, dated April 5, 2007, on the ground that it contains “scurrilous” attacks on the appellant’s counsel. By decision and order on motion of this Court dated September 19, 2007, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

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

Ordered that the motion is granted to the extent that those portions of the respondent’s brief which are identified in pages one through three of the affirmation of Joseph Henig dated August 14, 2007, submitted in support of the motion, are stricken and have not been considered on the appeal.

Although the appellant’s brief inappropriately makes “boilerplate” arguments regarding the lack of timelines of the denial of the subject claim without regard to the particular facts attendant to the case, the respondent’s ad hominem attack on the appellant’s counsel is unwarranted. The defects in the appellant’s brief are more properly brought to the Court’s attention without resorting to disparaging remarks. Goldstein, J.P., Skelos, Fisher and Dillon, JJ., concur.

[*1]

Civil Court of the City of New York, Bronx County, December 10, 2007

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for defendant. Leon Kucherovsky, New York City (Alan Goldstein of counsel), for plaintiff.

{**18 Misc 3d at 723} OPINION OF THE COURT

Sharon Aarons, J.

Relief Requested

Defendant moves for an order, pursuant to CPLR 2221 (e), granting defendant leave to renew and ordering a new trial based upon a change in law. Defendant’s motion is granted. Written opposition was submitted. Defendant’s motion for leave to renew is granted and upon renewal this court’s decision/order, dated October 31, 2006, is vacated, and plaintiff’s motions in limine for preclusion and for a directed verdict are denied.

Procedural Background[*2]

Plaintiff assignee brought this action against defendant, the assignor’s no-fault carrier, to recover for health services rendered to the assignor on December 10, 2004 in the nature of medical equipment supplied following the motor vehicle accident on October 28, 2004. Defendant contends that the medical equipment for which the plaintiff submitted a bill seeking $1,152 was not medically necessary.

Factual Background

On October 31, 2006 the parties appeared for trial of this action. They entered into a written stipulation, in writing and on the record, that plaintiff’s submission of the bill for services, the assignment of benefits and defendant’s denial of claim form (collectively admitted as plaintiff’s exhibit 1) would meet plaintiff’s burden of proof establishing its prima facie case. The parties further stipulated the timeliness and mailing of defendant’s denial of claim form. At the trial of this action, plaintiff made a motion in limine to preclude the peer review doctor from testifying and to preclude the defendant’s defense of lack of medical necessity on the grounds that the defense of lack of medical necessity was not preserved because the defendant’s denial of claim form, while asserting the defense of lack of medical necessity, neither specified the factual basis nor the medical rationale, and a copy of the peer review was not sent to the plaintiff. The court granted the plaintiff’s motions for preclusion and for a directed verdict in favor of the plaintiff and against the defendant in the amount of $1,152 with interest from August 2, 2005. The court’s granting of plaintiff’s motions was based upon the authority of the Appellate Term, Second{**18 Misc 3d at 724} and Eleventh Judicial Districts, rendered in A.M. Med. Servs., P.C. v Allstate Ins. Co. (12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], *3 [2006]), which stated that

“this court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense. In the instant case, defendant’s denial of claim forms with respect to said claims, and the accompanying explanation of benefits forms, merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denials of claims were otherwise devoid of any factual basis for the denials, defendant is precluded from asserting lack of medical necessity as a defense to said claims and plaintiff is entitled to summary judgment upon said claims” (citations omitted).

On November 3, 2006 the defendant served upon plaintiff a notice of appeal from the court’s decision/order and filed same with the Clerk of the Court on November 17, 2006.

Discussion and Analysis

The 1999 amendment of CPLR 2221 codified the rules pertaining to reargument and [*3]renewal motions. CPLR 2221 (e) (2) makes clear that a motion to vacate or modify a prior order on the ground that there has been a change in the law that would change the prior determination is a renewal motion. While the 1999 amendment set forth a specific time frame for the making of a motion to reargue (30 days after service of a copy of the order determining the prior motion with notice of entry [CPLR 2221 (d) (3)]), a motion to renew contains no statutory time prescription. The issue of the timeliness of a motion to renew under the 1999 statutory amendment was addressed by the Appellate Division, Second Department, in Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist. (278 AD2d 364 [2000]). In Glicksman the plaintiff’s complaint was dismissed. No appeal was taken from the order/judgment of dismissal. Subsequently, there was a change in the decisional law and seven months later a renewal motion ensued{**18 Misc 3d at 725} pursuant to the then recently amended CPLR 2221 (e) (2). The motion court granted the renewal motion and the Appellate Division reversed. The Appellate Division held that there was no indication in the legislative history of any intent to change the long-standing rule regarding finality of judgments and that a motion to renew may not be made after judgment was entered and no appeal was pending. Glicksman reaffirms that the law remains unchanged and that a motion to renew based upon a change in the law must still be made while the case is sub judice, i.e., still pending in the court system. (See also Daniels v Millar El. Indus., Inc., 44 AD3d 895 [2d Dept 2007]; Matter of Eagle Ins. Co. v Persaud, 1 AD3d 356 [2d Dept 2003].) Plaintiff does not assert that the defendant was untimely in the service or filing of its notice of appeal or that defendant’s appeal was dismissed. Consequently, defendant’s motion is timely since no judgment was entered and an appeal was pending and, as such, the court retains jurisdiction to determine the instant motion.

Subsequent to the issuance of this court’s decision/order and judgment, dated October 31, 2006, the Appellate Division, Second Department, decided the case of A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (39 AD3d 778 [2007]). That Court (at 779) stated as follows:

“For the reasons set forth in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (39 AD3d 779 [2007] [decided herewith]), and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (39 AD3d 832 [2007] [decided herewith]), we disagree with the Appellate Term’s conclusion that the defendant’s denial of claim forms were insufficient because they failed to set forth with sufficient particularity the factual basis and medical rationale upon which they were based. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided.”

The Appellate Term, First Department, concurred in A.I.D. Med. Supplies v GEICO Gen. Ins. Co. (15 Misc 3d 140[A], 2007{**18 Misc 3d at 726} NY Slip Op 51044[U] [2007], specifically citing A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co.; see also Andrew Carothers, M.D., P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 136[A], 2007 NY Slip Op 51613[U] [App Term, 2d & 11th Jud Dists 2007]; Delta [*4]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

As previously stated, prior applicable law mandated that a denial of claim based upon lack of medical necessity must set forth with sufficient particularity the factual basis and medical rationale for such denial. This could be set forth either in the denial of claim form or in a peer review report attached to the denial of claim form or sent to plaintiff within 30 days of the denial under separate cover. Since this was not done in the case at bar, this court, applying applicable law, held that the defense of lack of medical necessity was not preserved. The decisions of the appellate courts, cited above, subsequently ruled that pursuant to applicable Insurance Department regulations, upon request, an insurer is required to release a copy of the peer review report to the applicant or its attorney; that a denial based upon lack of medical necessity is not insufficient because it fails to set forth the factual basis and medical rationale; and that had it been the intent of the Insurance Department to require the factual basis and medical rationale in the denial it would have so provided. Hence, herein, the fact that the denial of claim form does not state a factual basis or a medical rationale does not invalidate the denial that was timely sent as so stipulated at trial by the plaintiff.

Accordingly, defendant’s motion must be granted.

Conclusion

Defendant’s motion for leave to renew is granted and upon renewal this court’s decision/order, dated October 31, 2006, is vacated, and plaintiff’s motions in limine for preclusion and for a directed verdict are denied. The Clerk of the Court, upon being served with a copy of this order with notice of entry is directed to place this action upon an appropriate calendar for trial and to notify the respective parties herein. Since this action is being restored to the trial calendar as a result of a change in existing law made by the Appellate Division, neither the filing of a new notice of trial nor the payment of any additional fees are required.

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 (Arthur F. Engoron J.), entered June 21, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s employee 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 on the ground that there were issues of fact as to coverage as well as with respect to the timeliness of defendant’s denial of claim forms. This appeal by plaintiff ensued.

Since 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, 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.
Decision Date: December 7, 2007

—[*1] Robert P. Macchia (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall Sweetbaum] of counsel), for appellant.

Seth A. Eschen, Syosset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to confirm two arbitration awards, Allstate Insurance Company appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), dated September 8, 2006, which, upon an order of the same court dated November 30, 2005, in effect, granting the petition and denying its cross motion to vacate the awards, is in favor of the petitioner and against it in the principal sum of $36,274.86.

Ordered that the judgment is affirmed, with costs.

An award in a compulsory arbitration proceeding may be upheld if it has evidentiary support and is not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of DiNapoli v Peak Automotive, Inc., 34 AD3d 674 [2006]; Matter of Eagle Ins. Co. v First Cardinal Corp., 8 AD3d 483 [2004]).

Contrary to the contention of Allstate Insurance Company (hereinafter Allstate), the subject arbitration awards directing it to reimburse the petitioner insurance company for payment of no-fault benefits was not arbitrary and capricious. It is undisputed that Allstate failed to timely file a written answer, and that its answer and accompanying evidentiary submissions were thus rejected by the arbitrator. Furthermore, there is no indication in the record that Allstate offered the arbitrator any explanation for its failure to submit a timely answer, and no representative of the company appeared at the arbitration hearing to offer evidence. Under these circumstances, we cannot [*2]conclude that the arbitrator’s refusal to consider the lack of coverage defense asserted in Allstate’s untimely answer was arbitrary and capricious. Accordingly, the Supreme Court properly confirmed the arbitration awards in favor of the petitioner. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

Supreme Court, Queens County

29079/06

Jaime A. Rios, J.

The issue presented in this CPLR 7503 proceeding to stay arbitration is whether the owner of an uninsured motorcycle can recover underinsurance benefits pursuant to an automobile policy issued to a member of his family household, when that policy contains an exclusion for uninsured “motor vehicles” owned by the insured.

The facts which give rise to the controversy involve an accident which occurred on October 4, 2006. On that date, Respondent Francis Lang (Lang) while operating his uninsured motorcycle collided with a car driven by Ming Zheng (Zheng).The Zheng vehicle was insured through GEICO. Following the accident, Lang filed a claim for personal injuries against Zheng. The claim was settled by Zheng’s insurer by the tender of $25,000 representing the full limits of the Zheng policy with GEICO.

Following the settlement, Lang demanded arbitration of a claim for underinsurance benefits pursuant to an automobile policy issued to family members Thomas and Mary Lang (Thomas & Mary) with whom he resided. Thomas & Mary were coincidentally insured through GEICO, who promptly disclaimed coverage based upon an exclusion contained in the Supplementary Uninsured/ Underinsured Motorist (SUM) endorsement of its policy. By correspondence dated November 9, 2006, GEICO advised Lang that it was disclaiming coverage on the basis that Lang “was operating his own motorcycle which was not insured at the time of this loss”.

On November 14, 2006 Lang demanded arbitration of his SUM claim and the subject proceeding ensued. By order of this court (Rios, J.) dated June 4, 2007, the Lang arbitration was stayed pending a hearing on the validity of the GEICO disclaimer which was premised on the exclusion contained in the SUM endorsement. On the hearing date of October 18, 2007, the [*2]parties agreed to the introduction into evidence of a copy of the GEICO automobile policy and stipulated that the court’s adjudication rested upon an interpretation of the applicability of the SUM exclusion to Lang’s motorcycle.

The Exclusions sections of the SUM endorsement of the GEICO policy reads in part: “This SUM coverage does not apply…(2). to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage under the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of this policy.”

Lang argues that the term motor vehicle and motorcycle are defined separately in the “Other Definitions” section of the no-fault (PIP) endorsement of the policy and pursuant to that definition, a motor vehicle does not include a motorcycle.

While the term motor vehicle was not specifically defined in the SUM endorsement of the policy, unlike the language in the PIP endorsement, a motorcycle was not specifically excluded from its definition. Further, the term motor vehicle has been construed to include a motorcycle for purposes of uninsured motorist coverage (see Country-Wide Ins. Co. v Wagoner, 45 NY2d 581 [1978]; Nationwide v Riccadulli, 183 AD2d 111 [1992]). Specifically, the policy exclusion relied upon by GEICO has been held to be unambiguous as it applies to a motorcycle owned and occupied by the insured that is not insured for SUM coverage (see USAA Cas. Ins. Co. v Hughes, 2006 NY Slip Op 9259; Utica Mut. Ins. Co. v Reid, 22 AD3d 127 [2005]; Cohen v Chubb Indem. Ins. Co., 286 AD2d 264 [2001]; Liberty Ins. Co. v Panetta, 187 AD2d 719 [1992]).

It is well settled that the liability, no fault and uninsured motorist portions of a comprehensive automobile insurance policy are discrete and internally complete coverages and should be read that way (see Utica Mut. Ins. Co. v Reid, 22 AD3d 127, supra; Eveready Ins. Co. v Asante, 153 AD2d 890 [1989]). SUM coverage exists separate and apart from the policy to which it is annexed and thus can not be qualified by inapplicable provisions of the PIP portion of the policy (see Knickerbocker Ins. Co. v Faison, 22 NY2d 554 [1968]; Eveready Ins. Co. v Asante, 153 AD2d 890 [1989]; Cohen v Chubb Indem. Ins. Co., 286 AD2d 264 [2001]).

Here, as it is undisputed that Lang, an insured under the GEICO policy, was operating an uninsured motorcycle he owned at the time of the subject occurrence, he is precluded from recovering underinsurance benefits pursuant to the exclusion in GEICO’s SUM endorsement.

Accordingly, GEICO’s petition for a permanent stay of underinsurance arbitration demanded by Lang is granted.

Dated: December 3, 2007________________________

Index No.: 29079/06J.S.C.

District Court of Nassau County, First District

12830/08

Attorneys for plaintiff: Friedman, Harfenist, Langer & Kraut, LLP

Attorneys for defendant: Picciano & Scahill, PC

Andrew M. Engel, J.

The Plaintiff commenced this action on April 4, 2007 seeking to recover no-fault first party benefits for acupuncture services provided to its assignor between February 20, 2002 and May 9, 2002, following a motor vehicle accident of June 5, 2001. Issue was joined on or about May 17, 2007. The Defendant now moves for summary judgment pursuant to CPLR § 3212. The Plaintiff opposes the motion.

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

The Defendant will be precluded from raising its defense of lack of medical [*2]necessity if it fails to demonstrate a timely and proper denial of the Plaintiff’s claim within thirty (30) days of its receipt. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Mt. Sinai Hospital v. Triboro Coach Incorporated, 263 AD2d 11, 699 NYS2d 77 (2nd Dept. 1999); Church Avenue Medical Care, P.C. v. Allstate Insurance Company, 189 Misc 2d 340, 731 NYS2d 582 (App. Term 2nd Dept. 2001); Struhl v. Progressive Casualty Insurance Company, 7 Misc 3d 138(A), 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) The threshold question presented, therefore, is whether or not the Defendant has tendered “either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); See also: New York and Presbyterian Hospital v. Allstate Insurance Co., 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006) In support thereof, the Defendant submits the affidavit of Shalonne O’Tey-Simon, one of Defendant’s Claims Representatives, and Daudley Fanfan, a Claims Support Services Supervisor of the Defendant.

Ms. O’Tey-Simon indicates that she is a Claims Representative in the Defendant’s Ballston Spa, New York no-fault office. Ms. O’Tey-Simon alleges that she is the custodian of the records contained in the Defendant’s file relating to this matter and that she is “fully familiar with the facts and circumstances related to the above-captioned matter based upon [her] review of the file and computer records maintained by [her] office.” (O’Tey-Simon affidavit 6/28/07, ¶ 3) Based upon that review, although she neither alleges to have actual knowledge of the mailing nor describes a standard office practice or procedure for the mailings, Ms. O’Tey-Simon avers that “the denials were generated on the date stated in the bottom left hand corner marked date’ … are generated at or near the time the decision is made to deny the bill … [and] were sent from the Claim Representative to our Claims Support Services personnel for mail processing.” (O’Tey-Simon affidavit 6/28/07, ¶ 9) Ms. O’Tey-Simon concludes that “the bills in question were timely denied.” (O’Tey-Simon affidavit 6/28/07, ¶ 3) Ms. O’Tey-Simon’s conclusory statements regarding the mailing of the denials here in question are insufficient to establish their mailing. Westchester Medical Center v. Countrywide Insurance Company, __ AD3d __, __ NYS2d __, 2007 NY Slip Op. 09024 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005)

Daudley Fanfan, represents that he is a Claims Support Services Supervisor in the Defendant’s Melville, New York office and that his duties include supervising Claim Service Assistants. Mr. Fanfan avers that he is personally familiar with the Defendant’s practices and procedures in processing no-fault claims in the Melville, New York office and is responsible for making sure that those procedures are followed. Mr. Fanfan describes that practice as follows: The Defendant’s denial forms (NF-10s) are completed by Claim Representatives and/or Claim Processors on computers and printed directly to Claim Service Assistants in the “CSA pool.” When a Claim Service Assistant retrieves the NF-10 from a printer he or she must check to make sure the document is properly dated. If the NF-10 is based upon an examination conducted by a doctor of the Defendant’s choosing, the NF-10 is placed in a windowed envelope, along with the doctor’s report, and brought to the mail room within twenty-four (24) hours. In the event copies must also be mailed, they are place in non-windowed envelopes and a Claims Service Assistant hand addresses the envelope. All mail received in the mail room by 3:00 p.m. is stamped and [*3]picked up by All American Courier, on the same day and brought to the Melville, New York post office for mailing that day. Mail received by the mail room after 3:00 p.m. is similarly picked up and mailed the following day. Mr. Fanfan concludes that “In light of these procedures, all correspondence and documents, including NF-10s and requests for verification, are processed and properly addressed and mailed to the proper parties either on the date of the particular document or one business day thereafter.” (Fanfan Affidavit 6/27/07, ¶ 8)

When stripped of all of its excess verbiage, which is designed to meet the aforesaid proof of mailing requirements, all that Mr. Fanfan actually alleges is that, at the Melville, New York office, an NF-10 is retrieved from a printer, placed in an envelope, brought to the mail room and picked up by a courier who delivers the envelope to the United States Postal Service. It is the opinion of this court that while this may describe a “standard office practice and procedure” Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it does not describe one “used to ensure that items were properly addressed and mailed.” id.; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) [“office practice must be geared so as to ensure the likelihood that a notice … is always properly addressed and mailed.”]

Absent from the Defendant’s alleged office practice and procedure is any indication that there exists a practice of comparing the names and addresses on the NF-10s with that of the Plaintiff’s billing, or the existence of a mailing list used to compare the names and addresses on the NF-10s with the items mailed, or whether a list is maintained indicating the number of NF-10s generated on a given day along with some identification of the matters in which the NF-10s were generated, or whether anyone routinely checked to see if the total number of envelopes mailed matched the number of NF-10s generated on a particular day, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service. See: Matter of Lumbermens Mut. Casualty Co., 135 AD2d 373, 521 NYS2d 432 (1st Dept.1987); State-Wide Insurance Co. v. Simmons, 201 AD2d 655, 608 NYS2d 274 (2nd Dept.1994); Clark v. Columbian Mut. Life Insurance Co., 221 AD2d 227, 633 NYS2d 311 (1st Dept.1995); L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mutual Casualty Co., 191 AD2d 680, 595 NYS2d 802 (2nd Dept.1993) Without such safeguards, notwithstanding the fact that the Defendant follows the same procedure, there is no way for the Defendant, or the court for that matter, to determine whether or not all NF-10s generated by the Defendant on a particular day are actually mailed. The procedure Mr. Fanfan describes does not take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office. If this were to occur, under the practices and procedures described by Mr. Fanfan, no one would know and the Defendant would have no way of tracking the lost NF-10. Compare: Presutto v. Travelers Insurance Company, 17 Misc 3d 1121(A); 2007 NY Slip Op. 52095

In addition to these problems with the Defendant’s proof of mailing, nowhere do Mr. Fanfan or Ms. O’Tey-Simon indicate how they know the office practice and procedure Mr. Fanfan describes was followed in this case. See: Allstate Social Work and Psychological Svcs PLLC v. GEICO General Insurance Co., 6 Misc 3d 1010(A), 800 NYS2d 341 (Civ. Ct. Kings Co. 2005); Capri Medical, P.C. v. Auto One Insurance Company, 14 Misc 3d 1205(A), 836 NYS2d 483 (Civ.Ct. Kings Co. 2006) This is particularly troubling, given the fact that neither Mr. Fanfan nor Ms. O’Tey-Simon indicate they were employed by the Defendant and familiar with the Defendant’s office practices and procedures in February 2002 when the first of the [*4]denials in question were allegedly mailed. Similarly, although Mr. Fanfan indicates that he is fully familiar with the practices and procedures for mailing used in the Defendant’s Melville, New York office and Ms. O’Tey-Simon indicates that she is the custodian of the file in this matter, which is located in the Defendant’s Balston Spa, New York office, neither of them indicate from which office the denials herein were allegedly mailed, when, in fact, the Defendant’s denials bear the address of the Defendant’s Parsippany, New Jersey office.

For these reasons alone, this court finds that there are numerous questions of fact concerning the Defendant’s timely denial of the claims here in issue, which would preclude the granting of summary judgment to the Defendant. The above notwithstanding, the Defendant’s proof of the alleged lack of medical necessity is similarly wanting at this time.

The Defendant’s admission of receipt of the Plaintiff’s claims and the absence of any challenge by the Defendant to either the propriety or timeliness of same establishes the medical necessity of the subject services in the first instance. All County Open MRI & Diag. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 NYS2d 496 (App. Term 9th and 70th Jud. Depts. 2006); Damadian MRI in Elmhurst, P.C. v. Liberty Mutual Insurance Co., 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003). Given the presumption of medical necessity which attaches to the Defendant’s admission of the Plaintiff’s timely submission of proper claim forms, the burden shifts to the Defendant to submit proof in admissible form establishing that the acupuncture treatment in question was not necessary. Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 918 (App. Term 2nd and 11th Jud. Dists. 2003); West Tremont Medical Diagnostic, P.C. v. GEICO Insurance Company, 13 Misc 3d 131(A), 824 NYS2d 759 (App. Term 2nd and 11th Jud. Dists. 2004).

At issue here are four (4) bills for acupuncture services rendered between February 20, 2002 and May 9, 2002. Assuming that they were timely made, the Defendant’s denials of these services are based upon the report of a physical examination performed on behalf of the Defendant, by Ping Zhu, OMD, L.Ac. on February 4, 2002, which concluded “[T]here is no need for further treatment from an acupuncture point of view.” The opinion of Mr. Zhu, who is a New York State Licensed Acupuncturist and Board Certified in Chinese Herbal Medicine, was based upon a physical examination he conducted on February 4, 2002 in which he allegedly found the Plaintiff’s assignor to have a negative traditional Chinese medicine examination, a negative orthopedic examination, and a negative neurological examination. Mr. Zhu also lists some seventeen (17) medical records he reviewed.

The Plaintiff does not submit any medical evidence which attempts to rebut Mr. Zhu’s conclusion. The Plaintiff does allege, however, that the Defendant’s proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. The Plaintiff sets forth several arguments in support of this position.

The Plaintiff first argues that Mr. Zhu’s report is “fraught with hearsay and cannot satisfy State Farm’s burden” (Armao Affirmation 10/11/07, ¶ 9) because it relies upon unsworn reports which were not annexed to the Defendant’s papers. Although the Defendant may rely of the unsworn records and reports of the Plaintiff’s assignor’s treating physicians, Raso v. Statewide Auto Auction, Inc., 262 AD2d 387, 691 NYS2d 158 (2nd Dept. 1999); Torres v. Micheletti, 208 AD2d 519, 616 NYS2d 1006 (2nd Dept. 1994); Vignola v. Varrichio, 243 AD2d 464, 662 NYS2d 831 (2nd Dept. 1997); Home Care Ortho. Med. Supply, Inc. v. American [*5]Manufacturers Mutual Insurance Co., 14 Misc 3d 139(A), 836 NYS2d 499 (App.Term 1st Dept. 2007); Cross Continental Medical, P.C. v. Allstate Insurance Company, 13 Misc 3d 10, 822 NYS2d 356 (App.Term 1st Dept. 2006), there is nothing in this record to indicate how the documents listed by Mr. Zhu are related to the Plaintiff’s assignor or from whom they were obtained. Nevertheless, Mr. Zhu does not indicate that he relied upon these records and reports in reaching his determination, which, according to his report was based upon the alleged findings of his physical examination conducted on February 2, 2002.

The Plaintiff next argues that the allegedly unsworn and un-submitted documents actually “create triable issues of fact as they contain findings contrary to the IME review.” (Armao Affirmation 10/11/07, ¶ 16) While Mr. Zhu’s mere reference to the unsworn or unaffirmed reports is sufficient to permit the Plaintiff to rely upon and submit them in opposition to the motion, Kearse v. New York City Transit Authority, 16 AD3d 45, 789 NYS2d 281 (2nd Dept. 2005); Amaze Medical Supply Inc. v. Allstate Insurance Company, 12 Misc 3d 139(A), 824 NYS2d 760 (App.Term 2nd and 11th Jud. Dists. 2006); Ayzen v. Melendez, 299 AD2d 381, 749 NYS2d 445 (2nd Dept. 2002), the Plaintiff does not do so. Assuming the Defendant had made a prima facie demonstrated the lack of medical necessity, the Plaintiff cannot refute this showing through nothing more than counsel’s conclusory assertion that reports which are not before the court create triable issues of fact.

Finally, the Plaintiff argues that the Defendant is required, but has failed, to submit evidence of the applicable generally accepted medical/professional standard and the Plaintiff’s departure therefrom. The Plaintiff is correct. Adopting the standard set forth in Fifth Avenue Pain Control Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 NYS2d 748 (Civ. Ct. Queens Co. 2003), this court holds: To find treatment or services are not medically necessary, it must be reasonably shown by medical evidence, in consideration of the patient’s condition, circumstances, and best interest of the patient, that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.

See also: Hellander, M.D., P.C. v. State Farm Insurance Company, 6 Misc 3d 579, 785 NYS2d 896 (Civ. Ct. Richmond Co. 2004) To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity, Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 NYS2d 857 (Civ. Ct. Kings Co. 2005), which is supported by evidence of the generally accepted medical/professional practices, A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 229 (Civ. Ct. Kings Co. 2005), and that the services rendered were inconsistent with those accepted practices. A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493 (Civ. Ct. Kings Co. 2006). Generally accepted practice has been recognized to be “that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.”City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, 3 Misc 3d 608, 77 NYS2d 241 (Civ. Ct. Kings Co. 2004); A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra .; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, supra . The conclusory opinion of Mr. Zhu, standing alone, is insufficient to demonstrate the lack of medical necessity. City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, supra .; Ultimate Medical Supplies v. Lancer Insurance Company, 7 Misc 3d 1002(A), 801 NYS2d 243 (Civ. Ct. Kings Co. 2004) [*6]

While Mr. Zhu reports that his traditional Chinese medicine examination, orthopedic examination and neurologic examination were negative, he fails to set forth his qualifications to conduct these latter examinations or to offer an opinion based thereon, which goes to the issue of credibility and weight to be accorded his opinions by the trier of facts, Hill v. New York Hospital, 277 AD2d 117, 716 NYS2d 568 (1st Dept. 2000); Williams v. Halpern, 25 AD3d 467, 808 NYS2d 68 (1st Dept. 2006). Moreover, Mr. Zhu fails to set forth what objective tests he performed to support his findings and conclusion. Under these circumstances, it cannot be said that the Defendant has properly established a prima facie showing of lack of medical necessity. Bedford Park Medical Practice P.C. v. American Transit Insurance Co., 8 Misc 3d 1025(A), 806 NYS2d 443 (Civ.Ct. Kings Co. 2005); cf. Hanna v. Alvarado, 16 AD3d 624, 791 NYS2d 440 (2nd Dept. 2005); Black v. Robinson, 305 AD2d 438, 759 NYS2d 741 (2nd Dept. 2003); Gamberg v. Romeo, 289 AD2d 525, 736 NYS2d 64 (2nd Dept. 2001)

Accordingly, the Defendant’s motion for summary judgment is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

December 3, 2007

___________________________

Andrew M. Engel

J.D.C.

Civil Court of the City of New York, Kings County

073321/06

Counsel for Movant-Defendant:

Short & Billy, P.C.

217 Broadway, Suite 300

New York, NY 10007

Tel.: (212) 732-3320

Counsel for Cross-movant-Plaintiff:

Ilona Finkelshteyn, P.C.

2503 65th Street

Brooklyn, NY 11204

Tel.: (718) 382-1266

Peter Paul Sweeney, J.

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff Friendly Physician, P.C. moves for summary judgment and defendant Progressive Insurance Company cross-moves to compel discovery. In opposition to plaintiff’s motion, defendant argues, among other things, that plaintiff did not establish its entitlement to summary judgment inasmuch as the no-fault claim forms underlying the action were not submitted in admissible form.

To prevail on its motion, plaintiff had the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant and that payment of no-fault benefits is overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2nd Dep’t 2004]; AVA Acupuncture, P.C. v. GEICO General Ins. Co.,17 Misc 3d 41[App. Term, 2d & 11th Jud. Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128(A), 2003 NY Slip Op 51701(U), 2003 WL 23310886 [App. Term, 2d & 11th Jud Dists] ). To meet this burden, plaintiff was required to establish the admissibility of the no-fault claim forms by demonstrating that they are business records within the meaning of CPLR 4518[a] (see [*2]e.g., Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 46 [App Term, 2nd & 11th Jud Dists 2006]; Great Wall Acupuncture v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 142(A), 2007 NY Slip Op. 50364(U)[App Term 2d & 11th Jud Dists]; Bath Med. Supply, Inc. v. Allstate Ins. Co.,16 Misc 3d 135(A), 2007 NY Slip Op. 51602(U) [App Term, 2nd & 11th Jud Dists] ). To do this, plaintiff was required to submit an affidavit or other admissible proof demonstrating that the claim forms were made in the regular course of business and reflect a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, that it was the regular course of business to make the claim forms, in other words, that they were made pursuant to established procedures for the routine, habitual, systematic making of such a record, and that the claim forms were made at the time of the acts, transactions, occurrences or events described therein, or within a reasonable time thereafter (see People v. Cratsley, 86 NY2d 81, 89 [1995]; People v. Kennedy, 68 NY2d 569, 579-580 [1986]; Williams v. Alexander, 309 NY 283, 286 [1955] ).

To lay the foundational elements through an affidavit, the affiant must aver that he or she had personal knowledge of the business practices and procedures pursuant to which the claim forms were made (see Dan Medical, P.C., 14 Misc 3d at 46, citing Hefte v. Bellin, 137 AD2d 406, 408 [1st Dep’t 1988]; Dayanim v. Unis, 171 AD2d 579 [1st Dep’t 1991]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A), 2006 NY Slip Op. 51879(U), 2006 WL 2829993 [App. Term, 2d & 11th Jud Dists]. The affidavit must also demonstrate that the preparer of the claim forms had actual knowledge of the events recorded therein or that he or she obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events to the preparer (see Capasso v. Kleen All of America, Inc., 43 AD3d 1346 [4th Dep’t 2007], citing Alexander, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:1; Matter of Leon RR, 48 NY2d 117, 122-123 [1979]; see also Johnson v. Lutz 253 NY 124, 128 [1930]; Toll v. State, 32 AD2d 47, 49 [3rd Dep’t 1969] ).

Applying these principles, the court finds that the affidavit submitted by plaintiff to show that the no-fault claim forms are business records was woefully insufficient. No details were set forth in the affidavit as to how the claim forms were generated. Certainly, there was no showing that they were made in the regular course of business or that it was the regular course of plaintiff’s business to make the claim forms.

The affidavit does not indicate that the preparer of the claim forms had actual knowledge of the events recorded therein, nor does it indicate that the preparer obtained knowledge of those events from someone with actual knowledge of them and who was under a business duty to report them to the preparer.

Finally, the affidavit did not demonstrate that the affiant possessed personal knowledge of plaintiff’s office practices and procedures. The court refuses to speculate that the affiant had such knowledge simply because the identified herself as plaintiff’s billing manager.

At oral argument, plaintiff’s counsel argued that the holding in Infinity Health Products, Ltd. v. New York Central Mutual Fire Insurance Company, 17 Misc 3d 130(A), 2007 NY Slip Op. 51984(U) [App Term, 2nd & 11th Jud Dists] supports its position that the affidavit at issue is sufficient to demonstrate the admissibility of the no-fault claim forms. In Infinity Health [*3]Products, Ltd., supra., the Appellate Term affirmed an order which awarded summary judgment to a plaintiff medical supplies provider, stating: “[f]or the reasons stated in Dan Medical, P.C. v. New York Central Insurance Co. ( Misc 3d , 2007 NY Slip Op [App Term, 2nd & 11th Jud Dists], decided herewith, the judgment is affirmed (emphasis added).” Plaintiff’s counsel maintained that the affidavit at issue in Infinity Health Products, Ltd. was virtually identical to the affidavit at issue here.

Whether the affidavit in Infinity Health Products, Ltd. is virtually identical to the one now before the court is of no moment. In the Dan Medical, P.C. case ^[FN1] cited by the court in Infinity Health Products, Ltd., the court stated: “[i]nasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto (id.).” Thus,it is apparent that in both Infinity Health Products, Ltd., supra. and Dan Medical, P.C., supra, the court never passed on whether the plaintiff established its prima facie entitlement to summary judgment. Thus, Infinity Health Products, Ltd. can not be viewed as appellate approval for the proposition that the affidavit before the court is sufficient to establish the admissibility of the no-fault claim forms.

In sum, inasmuch as plaintiff did not demonstrate that the no-fault claim forms annexed to the motion were business records within the meaning of CPLR 4518[a], plaintiff did not establish its entitlement to summary judgment. Accordingly, the motion must be denied regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ).

For the reasons stated above, it is hereby

ORDERED that plaintiff’s motion for summary judgment is DENIED; and it is further

ORDERED that defendant’s cross-motion, which plaintiff did not oppose, is GRANTED solely to the extent that plaintiff is directed to serve answers to defendant’s interrogatories within 45 days of the service of this order with notice of entry.

This constitutes the decision and order of the court.

Dated: December 3, 2007____________________________________

PETER P. SWEENEY

Civil Court Judge

Footnotes

Footnote 1:The Dan Medical, P.C. case cited in Infinity Health Products, Ltd. should not be confused with the seminal case of Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 829 N.Y.S.2d 404 [App Term, 2nd & 11th Jud Dists 2006] which held that a plaintiff in an action to recover no-fault benefits must submit the underlying no-fault claim forms in admissible form to prevail on a motion for summary judgment.

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 (Kevin Kerrigan, J.), entered December 28, 2005, deemed an appeal from a judgment entered April 6, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 28, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on five of its six claims and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $6,874.37.

Judgment reversed without costs, so much of the order entered December 28, 2005 as granted plaintiff summary judgment on five of its six claims vacated, plaintiff’s motion for summary judgment denied in its entirety 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, plaintiff’s motion for summary judgment was granted as to five of its six claims. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment. [*2]
Pesce, P.J., and Belen, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J. dissents and votes to affirm the judgment.
Defendant does not contest the sufficiency of plaintiff’s prima facie case. As a result, absent a timely and valid denial, defendant is precluded from raising most defenses to a cause of action for payment of the claim (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Notwithstanding the general rule, an insurer can defeat a plaintiff’s right to summary judgment if it can show the existence of a triable issue of fact as to whether the purported injuries are not related to an accident, by demonstrating that it possessed a “founded belief” that the alleged injuries are not causally related to an automobile accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Such a founded belief must be demonstrated by objective facts from which the insurer’s conclusion can be drawn. In Mount Sinai Hosp. v Triboro Coach (263 AD2d 11, 19 [1999]), the Appellate Division explained that “the defendant has the burden to come forward with proof in admissible form to establish the fact’ or the evidentiary foundation for its belief’ that the patient’s treated condition was unrelated to his or her automobile accident. . . .” Defendant’s submission in the instant case merely consists of the affidavit of its investigator who in conclusory terms maintained “the loss was not caused by (an) accident.” Despite referring to conversations with the policyholder and the driver of the insured vehicle, defendant’s submissions lack copies of their purported statements. Moreover, no explanation is presented for defendant’s failure to submit documentation in admissible form of its otherwise hearsay and speculative assertions. Thus, defendant failed to satisfy its burden of demonstrating the existence of a triable issue of fact (id.).
Accordingly, summary judgment in favor of the plaintiff was properly granted (see A.B. Med. Servs. PLLC v Encompass Ins., 10 Misc 3d 127[A], 2005 NY Slip Op 51892 [App Term, 2d & 11th Jud Dists 2005]).
Decision Date: November 29, 2007

Civil Court of the City of New York, Kings County

075350/05

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignors. 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 $1,791.00. Based on the testimony and evidence adduced at trial, this Court renders the following findings of fact and conclusions of law.

The parties stipulated to Plaintiff’s prima facie case and Defendant’s timely denial of the claim. The only issue to be decided by the Court is whether the magnetic resonance imaging (MRI) tests of Plaintiff’s assignor’s cervical and lumbar spine were medically necessary. Defendant bore the burden of proof on this issue. Therefore, Defendant had the burden to establish by admissible evidence its belief that the services rendered were not medically necessary (11 NYCRR 65.15). If the Defendant sustains this burden, the burden of persuasion shifts back to Plaintiff to submit rebuttal evidence that the services rendered were medically necessary (see, A.B. Medical Services, PLLC v. State Farm Mut. Auto. Ins., Co., 7 Misc 3d 822, 795 N.Y.S. 2d 843; V.S. Medical Services, P.C. v. Allstate Insurance Co., 11 Misc 3d 334; PDG Psychological, P.C., v. State Farm Insurance Co., 12 Misc 3d 1183(A); Citywide Social Work & Psy. Serv. V. Travelers Indem. Co., 3 Misc 3d 608 [Civ. Ct. Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 (U), 2003 WL 22471156 [Civ. Ct., Kings Co., 2003] Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231(A), 836 N.Y.S.2d 492, 2007 NY Slip Op. 50241(U); Williamsbridge Radiology & Open Imagining v. Travelers Indem. Co., 14 Misc 3d 1231(A), 836 N.Y.S. 2d 496, 2007 NY Slip Op. 50224(U)).

At trial, Defendant called Dr. Michael N. Berke, a Chiropractor, as its chief and primary witness. Dr. Berke testified that based on his examination of the assignor and review of the medical records he found no objective findings of spasm, no positive orthopedic tests or radicular complaints to justify the MRIs. The Plaintiff called Dr. Michael Walsh, a Neurologist, as its rebuttal witness. Dr. Walsh testified that he reviewed the treating physician’s medical report and that based on the assignor’s complaints, the MRIs were medically necessary. [*2]

The parties have submitted post trial memorandums. Defendant argued that Dr. Berke examined the assignor one day after the cervical MRI and three days prior to the lumbar MRI; that the assignor had no complaints of radiating pain at that examination; that based on Dr. Berke’s examination and his review of the medical report of the treating physician, Dr. Abbot, the MRIs were not medically necessary at the time when they were performed. Dr. Berke stated that his opinion is based on what is reasonable and customary in the medical field as well as his twenty (20) years of practice as a Chiropractor.

The Plaintiff argued that the assignor’s complaints included radiated

pain from the neck to the head, to the arms and the left lower extremity. ` Dr. Walsh testified that the Spurling test was positive, that there was restricted range of motion and spasm in the cervical spine, that the MRI test is considered as the goal standard to determine injury to the cervical and lumbar spine and therefore, the MRIs were appropriate to determine any possible permanent injury to the spine.

In determining whether services are not medically necessary, the Court is concern with proof demonstrating that the services were not reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluation and treatment of the patient (see, Fifth Avenue Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 766 N.Y.S. 2d 748, [Civ. Ct., Queens Co., 2003]). When a treating physician prescribes necessary medical services, that patient should receive those services promptly without the need of committee or board approval (see, New York Neurology Associates, PC, v. Allstate Insurance Company, 2003 NY Slip Op. 51297( U) citing Tudor v. Metropolitan Life Insurance Co., 143 Misc 2d 180). A review of the history behind No-Fault Law clearly demonstrates a preference for expedient review of claims with an eye towards benefitting the insured (see Fifth Avenue Pain Control Center v. Allstate Ins. Co., supra). Therefore, any uncertainties concerning the reasonableness of the services are to be resolved in favor of coverage (New York Neurology Associates, PC, v. Allstate Insurance Company, supra).

Here, the Court finds that the Defendant’s medical evidence demonstrated that the services were not medically necessary. However, Plaintiff has sufficiently rebutted Defendant’s medical testimony and has demonstrated the medical necessity of its claims. Dr. Walsh testified that based on the assignor’s age, complaints of back and neck pain and the findings of various objective tests, it was medically necessary to perform the MRI to determine if there was structural damage to the assignor’s cervical and lumbar spine.

Accordingly, judgment is entered in favor of the Plaintiff in the amount of $1,791.00 with statutory interest, costs and attorney fees.

This constitutes the Decision and Order of the Court.

Dated: November 27, 2007_____________________________Sylvia G. Ash, J.C.C.