[*1]

Argued October 9, 2007; decided November 15, 2007

Raffellini v State Farm Mut. Auto. Ins. Co., 36 AD3d 92, reversed.

{**9 NY3d at 199} OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether a “serious injury” exclusion in a supplementary uninsured/underinsured motorist endorsement to an automobile liability policy is enforceable. We conclude that it is. [*2]

In April 1998, plaintiff Nicholas Raffellini suffered back injuries when his vehicle was struck by a car that had driven through a red traffic light. Plaintiff’s medical expenses and other basic economic loss damages were paid through no-fault insurance. He then pursued recovery for his pain and suffering from the driver of the car that caused the accident. The driver’s insurance carrier agreed to pay plaintiff a settlement of $25,000—the limit of coverage under that policy. Plaintiff’s own insurer, defendant State Farm Mutual Automobile Insurance Company, did not object to the settlement.

After he received the $25,000 settlement payment, plaintiff demanded that State Farm pay him $75,000 in pain and suffering damages under the supplementary uninsured/underinsured motorist (SUM) endorsement, a component of plaintiff’s policy that provided up to $100,000 in coverage. When State Farm refused the demand, plaintiff commenced this breach of contract action. State Farm answered the complaint and asserted, among other defenses, that plaintiff could not recover under the SUM endorsement because he “did not sustain serious injury” and his exclusive remedy was, therefore, the receipt of no-fault benefits.

Plaintiff moved to strike the serious injury defense from State Farm’s answer, claiming that Insurance Law § 3420 (f) (2), which addresses SUM benefits, does not impose serious injury as a condition precedent to recovery. State Farm countered that Insurance Law § 3420 (f) (2) must be read in tandem with Insurance Law § 3420 (f) (1), which contains a serious injury requirement for uninsured motorist benefits. The insurer further submitted that an Insurance Department regulation, Regulation 35-D, requires that SUM recovery be conditioned on a finding of serious injury.

Supreme Court granted plaintiff’s motion to strike State Farm’s serious injury defense on the basis that Insurance Law § 3420 (f) (2) does not reference a serious injury exclusion and Regulation 35-D is inconsistent with the statute. The Appellate Division affirmed and granted State Farm’s motion for leave to{**9 NY3d at 200} appeal to this Court, certifying the question: “Was the opinion and order of this court dated October 24, 2006, properly made?” We answer this question in the negative and reverse the order of the Appellate Division, thereby reinstating State Farm’s serious injury defense.

The controversy concerning application of a serious injury requirement in these circumstances stems from the statutory framework. Insurance Law § 3420 (f) (1) mandates that insurers provide uninsured motorist coverage in every New York motor vehicle liability policy. The payment of mandatory uninsured motorist benefits is conditioned on a finding that the insured suffered a serious injury as defined in Insurance Law § 5102 (d). Section 3420 (f) (1) states: “No payment for non-economic loss shall be made under [*3]such policy provision to a covered person unless such person has incurred a serious injury, as such terms are defined in” the No-Fault Law.

Insurance Law § 3420 (f) (2) (A) addresses additional, optional personal injury coverage that can be purchased by a policyholder: “Any such policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy . . . .” Under this statute, the coverage is not triggered unless “the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (Insurance Law § 3420 [f] [2] [A]). Unlike subsection (f) (1), subsection (f) (2) is silent as to whether an insured must prove serious injury in order to receive supplementary benefits. Plaintiff contends that, by referencing serious injury in subsection (f) (1) and not subsection (f) (2), the Legislature permitted insurers to condition recovery of mandatory uninsured motorist benefits on the existence of a serious injury but intended to preclude them from conditioning recovery of supplementary benefits on such a finding.

Plaintiff’s argument runs contrary to the interpretation of the Superintendent of Insurance expressed in Regulation 35-D, codified at 11 NYCRR subpart 60-2. Regulation 35-D was promulgated in 1992 “to interpret section 3420 (f) (2) of the Insurance Law, in light of ensuing judicial rulings and experience, by establishing a standard form for SUM coverage, in order to eliminate ambiguity, minimize confusion and maximize its utility” (11 NYCRR 60-2.0 [c]). The regulation{**9 NY3d at 201} requires that “[e]very SUM endorsement issued shall be the Supplementary Uninsured/Underinsured Motorists Endorsement prescribed by subdivision (f) of this section” (11 NYCRR 60-2.3 [c]). Subdivision (f) sets forth the precise language insurers are to use in the endorsement, including an “EXCLUSIONS” section which reads: “This SUM coverage does not apply . . . for non-economic loss, resulting from bodily injury to an insured and arising from an accident in New York State, unless the insured has sustained serious injury as defined in Section 5102 (d) of the New York Insurance Law” (11 NYCRR 60-2.3 [f] [EXCLUSIONS] [3]). State Farm asserts that it incorporated the form language in the SUM endorsement it issued to plaintiff, as it was required to do.

It is well settled that the Legislature may authorize an administrative agency “to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 865 [2003], quoting Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]). “In so doing, an agency can adopt regulations that go beyond the text of that legislation, provided they are not [*4]inconsistent with the statutory language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]). A duly promulgated regulation that meets these criteria has the force of law.

We have previously recognized that the Legislature has vested the Superintendent of Insurance with “broad power to interpret, clarify, and implement the legislative policy” by promulgating regulations (Medical Socy., 100 NY2d at 863-864, quoting Ostrer v Schenck, 41 NY2d 782, 785 [1977]) and has directed the Superintendent to “prescribe forms” (see Insurance Law § 301 [b]). Thus, in Medical Society, where the Superintendent’s power to adopt regulations imposing strict time requirements on the filing of no-fault claims was challenged, this Court found the regulations valid, even though the No-Fault Law itself is silent on the question of time periods. We noted that the time frames, intended to combat an escalating fraud problem, were consistent with the policy underlying the No-Fault Law—to provide prompt compensation to legitimate claimants. In other contexts, we have relied on the Superintendent’s interpretation of New York insurance law, expressed in Regulation 35-D, as “persuasive authority” (see Matter of Allstate Ins. Co. [Stolarz—{**9 NY3d at 202};New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 224 [1993]) and we have specifically cited Regulation 35-D when identifying the exclusions authorized for uninsured/underinsured motorist benefits (see Matter of Liberty Mut. Ins. Co. [Hogan], 82 NY2d 57, 60 [1993]).

Plaintiff argues that, insofar as Regulation 35-D imposes a serious injury requirement on the recovery of supplementary benefits, it is inconsistent with Insurance Law § 3420 (f) (2) and is therefore unenforceable. There is no question that “if [a] regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980] [citation omitted]). But in this case, the relevant statutory provision and the regulation are not contradictory. Insurance Law § 3420 (f) (2) is silent on the issue of whether an insured can recover SUM benefits absent a serious injury and that silence does not, in this case, imply that the Legislature intended to permit such recovery.

The legislative history of the relevant provisions refutes the argument that, by placing the serious injury exclusion in the mandatory benefits provision but not the supplementary benefits provision, the Legislature intended to preclude the Superintendent from authorizing application of a serious injury exclusion for supplementary benefits. Before uninsured motorist coverage was developed almost 50 years ago, it was not uncommon for a person injured in a motor vehicle accident by an uninsured tortfeasor to be unable to recover any damages. To redress this problem, in 1958 the Legislature created the Motor Vehicle Accident Indemnification Corporation to provide compensation for individuals injured by uninsured motorists, whether or not the injured individuals possessed automobile insurance themselves (L [*5]1958, ch 759; see Matter of Lloyd [Motor Veh. Acc. Indem. Corp.], 23 NY2d 478 [1969]). At the same time, legislation was passed requiring the inclusion of mandatory uninsured motorist coverage in every automobile liability policy issued in New York (L 1958, ch 759, § 4). “The primary objective of this legislation was to afford the innocent victims of uninsured motorists the same protection available to victims of insured motorists with respect to their relative ability to obtain compensation for losses sustained in an automobile accident” (Fox v Atlantic Mut. Ins. Co., 132 AD2d 17, 21 [2d Dept 1987]). The Legislature’s mandatory uninsured motorist coverage provision—the predecessor {**9 NY3d at 203}to Insurance Law § 3420 (f) (1)—was codified at Insurance Law § 167 (2-a).

Mandatory uninsured motorist coverage therefore significantly predated the No-Fault Law, which was not enacted until 1973 (L 1973, ch 13). The No-Fault Law changed the legal landscape by imposing a distinction between basic economic loss (primarily medical expenses and lost wages up to $50,000), which would be covered regardless of fault in an accident, and noneconomic loss (pain and suffering), recoverable only through a personal injury claim against a tortfeasor responsible for the injuries (Insurance Law § 5102 [a], [b], [c]). As to the latter, the No-Fault Law required that injured parties be precluded from pursuing personal injury claims unless they suffered a “serious injury” (Insurance Law § 5104 [a]).^[FN*]

In 1977, the Legislature amended the mandatory uninsured motorist benefits statute—Insurance Law § 167 (2-a)—to clarify that the recovery available under this coverage was not to be diminished by an insurer’s payment of no-fault benefits (L 1977, ch 892, § 3). At the same time, the Legislature added a new paragraph to section 167 (2-a) establishing supplementary uninsured/underinsured motorist coverage. This new paragraph—the predecessor to Insurance Law § 3420 (f) (2)—gave an insured the option of purchasing additional uninsured motorist coverage beyond the mandatory minimum as well as “underinsurance” coverage to guard against the possibility of injury by a tortfeasor who was insured but in an amount insufficient to fully compensate the [*6]injured party. The newly-added second paragraph read as a continuation of the first, providing that “[a]ny such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance . . . .” (L 1977, ch 892, § 3 [emphasis added].) As is the case with mandatory benefits,{**9 NY3d at 204} the purpose of supplementary benefits was “to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident” (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]). Rather than characterizing supplementary benefits as a distinct type of coverage, our Court has viewed underinsured motorist coverage as an extension of uninsured motorist coverage:

“The statutory allowance for supplementary uninsured motorists insurance coverage expands the ‘uninsured motorist’ category to include one who, while maintaining proof of financial responsibility as required by law, and thus being an ‘insured motorist’, nevertheless may be considered an ‘uninsured motorist’ because he is ‘underinsured’ when compared to the coverage of an insured who has exercised the option to purchase supplementary insurance” (Reichel v Government Empls. Ins. Co., 66 NY2d 1000, 1003 [1985]).

The serious injury exclusion at the heart of this dispute was added to the statutory scheme in 1981 (L 1981, ch 435) when mandatory and supplementary benefits were still addressed in adjoining paragraphs of the same subdivision—Insurance Law § 167 (2-a). The Legislature inserted the serious injury language in the first paragraph—the mandatory coverage portion—of that subdivision. But there is no indication in the legislative history of the amendment that the Legislature decided to apply a serious injury exclusion solely to mandatory coverage and not to supplementary benefits. Because both paragraphs of section 167 (2-a) related to uninsured motorist benefits and supplementary coverage was framed as an extension of the mandatory coverage outlined in the first paragraph, the exclusion can reasonably be viewed as having been intended to apply to both categories of benefits. Based on the structure of section 167 (2-a), we cannot say that the Legislature’s failure to restate the serious injury provision in the second paragraph evinced an intent to preclude application of such an exclusion to supplementary benefits.

It was not until 1984, when the Insurance Law was recodified and renumbered in its entirety (L 1984, ch 367), that the two paragraphs were separated into two subsections, resulting in the placement of the serious injury exclusion in Insurance{**9 NY3d at 205} Law § 3420 (f) (1) and not in Insurance Law § 3420 (f) (2). This recodification was not meant to effect a substantive change in the law—certainly, there is no reason to conclude that the Legislature split the two paragraphs into separate subsections to create a distinction between the two types of coverages that did not already exist. Given this legislative evolution, we are unpersuaded that the placement of the serious injury exclusion in Insurance Law § 3420 (f) (1) but not section 3420 (f) (2) reflects a legislative determination to restrict the serious injury exclusion to mandatory benefits. [*7]

Indeed, as the Superintendent apparently concluded, such a distinction would not be consistent with the policy underlying supplementary benefits, which are designed to give insureds the same level of protection that would have been available to others under the policy if the insureds were the tortfeasors who caused personal injuries. When an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met (see Insurance Law § 5104 [a]). Since the purpose of supplementary coverage is to extend to the insured the same level of coverage provided to an injured third party under the policy, the insured must also meet the serious injury requirement before entitlement to supplementary benefits. If this were not the case, the insured would receive coverage more comprehensive than that available to a third party injured by the insured.

It is evident from the facts of this case that the application of the serious injury exclusion is consistent with the policy supporting supplementary benefits. Here, plaintiff received payment for his basic economic loss through no-fault benefits. When he sued the negligent party who caused the collision, he was seeking recovery for noneconomic loss. Having obtained the $25,000 limit of coverage from the negligent driver’s insurer, he then sought additional noneconomic loss damages under the SUM endorsement to his State Farm insurance policy. Since a third party injured as a result of plaintiff’s negligence would have had to demonstrate serious injury to obtain noneconomic loss damages under plaintiff’s policy, it follows that plaintiff himself must prove serious injury to recover under his SUM endorsement—as Regulation 35-D requires. State Farm is therefore entitled to pursue its serious injury defense.{**9 NY3d at 206}

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion to strike defendant’s fifth affirmative defense denied, and the certified question answered in the negative.

Chief Judge Kaye and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

Footnotes

Footnote *:

” ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102 [d]).

—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments, the defendant appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), entered August 23, 2006, which, upon an order of the same court dated August 14, 2006, granting the plaintiff’s motion for summary judgment on the complaint and denying its cross motion for summary judgment dismissing the first cause of action, is in favor of the plaintiff and against it in the principal sum of $13,491.40.

Ordered that the judgment is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, the affidavits from its billers, as well as the certified mail receipts, and the signed return receipt cards which referenced the patients and the forms (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). This evidence demonstrated that the defendant received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact, and in support of its cross motion for summary judgment dismissing the first cause of action, the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. The defendant contended that the claim for payment with respect to the first cause of action was [*2]premature because the plaintiff had failed to respond to its verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). The defendant submitted the affidavit of a supervisor employed in its claims department, which stated, with respect to the first cause of action, that a timely verification request was mailed on August 11, 2005, and a follow-up request was mailed on September 10, 2005. The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 227-228 [1985]). The defendant’s submissions were insufficient to create a presumption that the verification requests were received by the proper party (see Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 568; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Furthermore, the defendant’s failure to timely object to the completeness of the assignment of benefits forms or to seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

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

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006 and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]).

We agree with the Supreme Court that the plaintiff’s moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4 (c) (11). Moreover, the “NF-10” denial of claim form was issued within 30 [*2]days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and we need not reach the sufficiency of the defendant’s opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated March 30, 2007, to strike the respondent’s brief on the ground that it raises issues which were not raised before the Supreme Court, Nassau County. By decision and order on motion of this Court dated September 5, 2007, the motion was referred to the bench hearing the appeal for determination upon the argument or submission of the appeal.

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

Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, November 6, 2007

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Kim Rasin of counsel), for plaintiff. De Martini & Yi, Williston Park (Dana M. Koos of counsel), for defendant.

{**17 Misc 3d at 950} OPINION OF THE COURT

Genine D. Edwards, J.

{**17 Misc 3d at 951}At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff’s prima facie case was established, the defendant’s denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant’s witness was an expert. The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.; the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with a case with the index number 19685/06, regarding assignor Connie Brady, this court, via correspondence dated August 7, 2007, required the parties to submit posttrial memoranda with respect to plaintiff’s motion in limine regarding the time for scheduling an examination under oath. Plaintiff’s memorandum was due on September 11, 2007 and defendant’s memorandum was due on October 11, 2007. Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff’s motion in limine be denied for failure to comply with this court’s briefing schedule.

The plaintiff orally argues that the defendant’s request for an examination under oath did not toll defendant’s time to pay or deny plaintiff’s claims because the examination under oath was scheduled more than 30 days after receipt of the claim. Plaintiff relies on Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) and S & M Supply v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]). Defendant counters that Regulations § 65-3.5 (d) only relates to medical examinations, while subdivision (e) instructs as to examinations under oath. The defendant argues that subdivision (e) does not direct a date certain or a specific time to schedule the examination under oath; the subdivision only discusses a reasonable time and place for such examination.

After due deliberation of the evidence and arguments asserted, this court finds that the plaintiff’s contentions are correct. Although case law directly on point could not be found, this court must be guided by the legislative intent to resolve no-fault matters expeditiously. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Fair Price Med. Supply [*2]Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term,{**17 Misc 3d at 952} 2d & 11th Jud Dists 2005]; Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [Civ Ct, Queens County 2005].) Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; S & M Supply, supra.)

However, the plaintiff failed to offer any evidence as to when it received the verification forms. Thus, this court cannot determine whether the examinations were scheduled within the requisite time period. Therefore, plaintiff’s motion is denied.

Since the parties stipulated that plaintiff’s prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact. The defendant fails at its burden. There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests. (Mega Supply & Billing, Inc. v AIU Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50687[U] [App Term, 2d & 11th Jud Dists 2007]; Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 144[A], 2007 NY Slip Op 50394[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]; Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists 2005].) Hence, defendant’s time to pay or deny the plaintiff’s claims was never tolled.

Assuming, arguendo, that the defendant met its initial burden of timely mailing, this court finds that the defendant’s expert’s testimony was unpersuasive. Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases. This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822 for each case, as well as statutory interest and attorney’s fees.

Supreme Court, Nassau County

019900/06

F. Dana Winslow, J.

This motion by plaintiff Westchester Medical Center a/a/o Christopher Andrews and Michael Mascolo for an order pursuant to CPLR 3212 granting them summary judgment is granted as provided herein.

This cross-motion by defendants Encompass Insurance Company and Allstate Insurance Company for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is denied.

In this action pursuant to Insurance Law § 5106(a), the plaintiff Westchester Medical Center seeks payment of no-fault medical insurance benefits for services rendered to the individual plaintiffs, Christopher Andrews and Michael Mascolo. Westchester Medical Center has represented that its claim o/b/o plaintiff Michael Mascolo has been settled, however, that has not been established. Westchester Medical Center’s motion for summary judgment with respect to Michael Mascolo’s claim is denied without prejudice to renewal.

In its complaint, Westchester Medical Center alleges that it rendered medical services to Christopher Andrews for injuries related to a June 8, 2005 motor vehicle accident from June 26, 2006 through June 28, 2006; that it billed defendant Encompass Insurance Company for those service in the amount of $11,733.84 via an N-F5 and UB-92 on September 25, 2006, which notice was sent via certified mail, return receipt requested; that Encompass Insurance Company received that claim on September 27, 2006; and, that Encompass Insurance Company has failed to pay or deny that claim.

Westchester Medical Center presently seeks summary judgment pursuant to Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1), as well as attorneys fees pursuant to 11 NYCRR 65-4.6(e).

Insurance Law § 5106(a) and 11 NYCRR 65-3.8(a)(1) provide that first party benefits shall be paid as the loss is incurred and that such benefits are overdue if not paid within 30 days [*2]after proof of fact and the amount of the loss is submitted.

“The plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits [is] overdue.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005) citing Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(3); Alvarez v Prospect Hosp., 68 NY2d 320, 325 (1986); Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).

In opposition, Encompass Insurance has submitted an affidavit by claims representative Diana Dwyer in which she attests that Westchester Medical Center’s claim for services rendered to Christopher Andrews was denied via a regulatory prescribed form on October 17, 2006 for not having been timely made. Stacey Melton, Senior Print Division Manager at the insurance company’s processing center, details how claims are processed and denied. She states that because the NF-10 and Explanation of Benefits are dated October 17, 2006, office procedure indicates that they were mailed that day, prior to the 30 days in which Encompass was required to act on Andrew’s claim.

The defendant Encompass Insurance has failed to submit a proper affidavit of service to establish that the denial of claim form was in fact mailed to plaintiff. Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 564-565, citing Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 (2nd Dept. 2001).

In any event, “even if the defendant timely issued the denial of claim form within 30 days of its receipt of the plaintiff’s [claim], [a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.’ ” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 (NY Sup. App. Term 2004); Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d 664 (2nd Dept. 2004). “A proper denial of claim must include the information called for in the prescribed denial of claim form.” Nyack Hospital v Metropolitan Property & Casualty Insurance Company, supra, at p. 565, citing NYCRR 65-3.4(c)(11); Nyack Hosp. v State Farm Mut. Auto. Ins. Co., supra, at p. 664.

11 NYCRR 65-3.3(e) provides:

“”When an insurer denial a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.”

This “regulation ameliorates the impact of the severely shortened time periods in which a claimant must submit its notice of claim or proof of claim . . . and while the use of mandatory language, such as must,’ is not conclusive, it is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary intent.” Radiology Today v Citiwide Auto Leasing, Inc., 15 Misc 3d 92, 94 (NY Sup. App. Term 2007), citing McKinney’s Cons. Laws of NY, Book 1, Statutes § 177; Matter of Janus Petroleum v New York State Tax Appeals Tribunal, 180 AD2d 53, 54 (3rd Dept. 1992), quoting People v Schonfeld, 74 NY2d 324, 328 (1989). A defense based on an untimely submission of claim is barred where, like here, there is a lack of proof of [*3]compliance with the notice requirement of 11 NYCRR 65-3.3(e). Radiology Today v Citiwide Auto Leasing, Inc., supra, at p. 94.

Plaintiff Westchester Medical Center is accordingly granted summary judgment in the amount of $11,733.84 as and for its claims asserted o/b/o Christopher Andrews, as well as attorney’s fees.

Submit judgment on notice.

Dated:ENTER:

_________________________________

J.S.C.

[*1]

District Court of Suffolk County, Fourth District, November 1, 2007

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola, for plaintiff. Rivkin, Radler, LLP, Uniondale, for defendant.

{**18 Misc 3d at 797} OPINION OF THE COURT

G. Ann Spelman, J.

{**18 Misc 3d at 798}This action was commenced by plaintiff Custom Orthotics of NY, Inc. as assignee of Francisco J. Ramirez against defendant State Farm Mutual Auto Ins. Co. to recover first-party no-fault benefits. A trial de novo was held on July 16, 2007, and memoranda in support of the parties’ positions were submitted on or before August 6, 2007. The following is the court’s decision.

The ultimate issue to be considered at the trial of this matter was the medical necessity of the services for which compensation is sought. However, the preliminary issue was the ability of plaintiff to establish its prima facie case based solely upon answers given in the notice to admit, with reference to other documents, as no witness was produced. In fact, neither party had a witness available to testify, yet agreed to proceed with the trial. After introducing the notice to admit and other documents, plaintiff rested. Defendant rested a moment later. Plaintiff then moved for judgment in its favor followed by defendant’s motion to dismiss the complaint. Decision was reserved.

Defendant in its answers to plaintiff’s notice to admit admitted that it received the “claims for no-fault benefits” and “bills that are the subject of this action . . . to the extent that same were attached to the Summons and Complaint,” but specifically “reserve[d] the right to object to the validity of same at trial.” Defendant further admitted that it did not pay the claims or bills, but “only to the extent that no payment is due and owing.” In addition, as to plaintiff’s [*2]request for an admission that defendant received an assignment of benefits form for the claims underlying this action, defendant admitted “only that Plaintiff submitted a form that is purported to be an assignment of benefits” but “reserve[d] the right to object to [the] validity [thereof]” at trial.

Also introduced by plaintiff was defendant’s “Arbitration Submission.” Among other things, the arbitration “packet,” as counsel referred to it, contained defendant’s denial of plaintiff’s claims which was based solely upon a lack of medical necessity.

Among other things, defendant argued that the admissions sought to be used were “at the heart of the matter,” i.e., absolutely essential to plaintiff’s right to recovery, and that the facts underlying the admissions were “hotly contested,” thus precluding the use of the notice and its contents at trial. Defendant argued further that permitting plaintiff to proceed in this fashion improperly dispensed with the requirement that{**18 Misc 3d at 799} plaintiff’s witness establish a proper foundation for introduction of the documents necessary to establish its prima facie case.

The court is aware of persuasive authority supporting plaintiff’s position (see Seaside Med., P.C. v General Assur. Co., 16 Misc 3d 758 [Suffolk Dist Ct 2007] [unanswered notice to admit sufficient to establish prima facie case]; see also Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [App Term, 1st Dept 2007] [holding that defendant’s verified answers to interrogatories were formal judicial admissions and therefore sufficient to establish plaintiff’s entitlement to judgment in its favor]).

The case at bar is distinguishable, however, in that defendant answered the notice to admit, admitting the receipt of certain materials, but pointedly reserving its right to challenge the validity of plaintiff’s documentary evidence at trial. Under the circumstances presented, it cannot be said that plaintiff’s ability to establish a prima facie case is not “hotly contested,” as defendant argues. Significantly, no bills or claim forms were attached to the summons and complaint in the court’s file. Rather, what was appended was a computer printout generated by plaintiff.

In addition, recent case law suggests that the formalities surrounding the introduction of business records into evidence must be observed, and that a decision in favor of plaintiff herein would not survive on appeal (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]; Fortune Med., P.C. v Allstate Ins Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

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

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered February 16, 2006, which, inter alia, granted plaintiff’s cross motion for summary judgment to the extent of awarding it the principal sum of $587.90.

Per Curiam.

Order (Anil C. Singh, J.), entered February 16, 2006, modified to deny plaintiff’s cross motion for summary judgment in its entirety, and as modified, affirmed, without costs.

Plaintiff seeks to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. Although plaintiff moved for summary judgment on both claims, its motion was granted only to the extent of awarding plaintiff the sum of $587.90 on its claim for services rendered on April 25, 2002. Inasmuch as plaintiff’s submissions were insufficient to establish that it mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations (see 11 NYCRR 65.12[e]), its motion for summary judgment should have been denied in its entirety.

In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted the affidavit of an employee of the entity that oversees the mailing of its billings. The affidavit, dated December 30, 2005, stated that the employee mailed the bill for services rendered on April 26, 2002 on June 3, 2002. Although the affidavit indicated that the affiant personally mailed the bill to defendant, it did not explain the office mailing practice of her employer nor did it state the basis for the affiant’s recollection, three years later, of mailing the bill. Since the affidavit was insufficient to give rise to the presumption of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]), and defendant has alleged that it received plaintiff’s claim outside the prescribed 180-day period, plaintiff’s cross motion for summary judgment on the $587.90 claim should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: October 31, 2007

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

74577 CVN 2006

Plaintiff represented by: Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, by Shayna E. Sacks, Esq., 150 Herricks Road, Mineola, NY 11501, Tel: 516-741-4799.

Defendant represented by: Law Offices of Karen C. Dodson, by Jerry Marti, Esq., 485 Lexington Avenue, 7th Floor, New York, NY 10017, Tel: 917-778-6509.

Shlomo S. Hagler, J.

In these two actions to recover first-party no-fault benefits, defendant Travelers Insurance Company (“Travelers” or “defendant”) makes two virtually identical motions for orders pursuant to CPLR § 3212 granting it summary judgment dismissing the complaints. Plaintiff Ray Presutto, L.M.T., P.C. (“Presutto” or “plaintiff”) opposes the motions. Both motions are consolidated herein for disposition.

Background

Miguel A. Villatoro (“Villatoro” or “assignor”) allegedly suffered personal injuries as a result of a motor vehicle accident on September 2, 2002. Villatoro allegedly assigned to Presutto his right to recover benefits from Travelers for health care services rendered to him. Presutto allegedly provided treatment to Villatoro for the periods of May 1, 2003 through May 28, 2003 ($61.60), May 27, 2003 through June 12, 2003 ($61.60), and June 28, 2003 through July 3, 2002 ($61.60).

Presutto allegedly mailed Travelers claim forms or bills in the aggregated amount of $184.80. At Travelers’ request, on January 29, 2003, Dr. Lawrence B. Miller, D.O., a board certified orthopedic surgeon, conducted an Independent Medical Examination (IME”) of Villatoro. Dr. Miller conducted various objective tests on Villatoro and concluded in his affirmed report dated January 29, 2003, that “orthopedic treatment is not indicated or warranted at this time, including physiotherapy or any other type of rehabilitative therapy/treatment. Furthermore, diagnostic testing, [*2]surgical intervention , household help, durable medical equipment or special transportation services are not medically necessary.” (Exhibit “C” to the Motions.) On August 18, 2003, Travelers denied all claims based on Dr. Miller’s IME and report dated January 29, 2003. (Exhibit “D” to the Motions.)

As a result of defendant failing to pay first-part no-fault benefits, plaintiff commenced these two actions by service and filing of a summons and complaint. (Exhibit”A” to the Motions.) Defendant interposed answers to the complaints. (Exhibit “A” to the Motions.)

Summary Judgment

The movant has the initial burden of proving entitlement to summary judgment. Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985). Once such proof has been offered , in order to defend the summary judgment motion, the opposing party must “show facts sufficient to require a trial of any issue of fact.” CPLR § 3212; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 (1970); Friedman v Chemical Construction Corp., 43 NY2d 260, 401 NYS2d 176 (1977); and Spearmon v Times Square Stores Corp., 96 AD2d 552, 465 NYS2d 230 (2d Dept 1983). “It is incumbent upon a [party] who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in [its pleading] are real and are capable of being established upon a trial.” Spearmon v Times Square Stores Corp., 96 AD2d at 553, 465 NYS2d at 232 (quoting DiSabato v Soffes, 9 AD2d 297, 301, 193 NYS2d 184, 189 [1st Dept 1959]). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant’s papers, the movant’s facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne & Nagel, Inc. F. W. Baiden, 36 NY2d 539, 369 NYS2d 667 (1975).

Proof of Mailing

There are three distinct methods to demonstrate proof of mailing. The first and simplest method is to provide an affidavit from an individual with personal knowledge of the actual mailing. The second is where an acknowledgment by the adverse party that it received the subject document serves as an admission. A.B. Medical Services a/a/o German v New York Central Mutual Fire Ins. Co., 3 Misc 3d 136(A), 787 NYS2d 675(Table) (App Term, 2d & 11th Jud Dists 2004); Fair Price Medical Supply Corp. a/a/o Graham v Elrac Inc., 12 Misc 3d 119, 820 NYS2d 679 (App Term, 2d & 11th Jud Dists 2006). The third and most common method is where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed. Pardo v Central Cooperative Insurance Company, 223 AD2d 832, 636 NYS2d 184 (3d Dept 1996). The first and second methods are straight-forward. However, the third method is vexing as there is a dearth of authority that addresses the specific requirements to adequately set forth a standard office practice and procedure.

The courts discuss the sufficiency of proof of mailing in several contexts. These include cancellation notices sent by insurers to insureds, and denials of claims or requests for verification by insurers to healthcare providers. The standard of proof necessary to establish that a proper mailing was executed appears to be the same for each of these circumstances. See, e.g., Contemp. Med. Diag. & Treatment, P.C., a/a/o Boone and Villafane v Government Employees Ins. Co., 6 Misc 3d 137(A), 899 NYS2d 344 (App Term, 2d & 11th Jud Dists 2005) (holding that standard of proof [*3]for mailing of verification requests are the same as for denial of claims, as per Hospital for Joint Diseases v Nationwide Mutual Ins. Co., 284 AD2d 374, 726 NYS2d 443 [2d Dept 2001], and insurance cancellation notices, as per Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 [2d Dept 2001]). “Generally, proof of proper mailing gives rise to a presumption that the item was received by the addressee.” Residential Holding Corp., 286 AD2d at 680, 729 NYS2d at 778. However, “in order for the presumption [of mailing] to arise, office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed.” Nassau Ins. Co. v. Murray, 46 NY2d 828, 830, 414 NYS2d 117, 118 (1978).

To establish proof of mailing, an affidavit should detail standard office policies and procedures regarding the processing of claims and it must also contain a statement of the affiant’s personal knowledge that those policies and procedures have been followed in the instant case. See Contemp. Med. Diag. & Treatment, P.C., a/a/o Boone and Villafane v Government Employees Ins. Co., supra . However, in Delta Diagnostic Radiology, P.C. a/a/o Philogene v Chubb Group of Ins., 17 Misc 3d 16, 18 (App Term 2d & 11th Jud Dists, 2007), the Appellate Term clarified its prior ruling in Contemp. Med. Diag. & Treatment, P.C., supra , as follows:

We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc 3d 137(A), 2005 NY Slip Op. 50254[U], 2005 WL 494360 [App. Term, 2d & 11th Jud. Dists.] should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed (see e.g. New York & Presbyt. Hosp. V. Allstate Ins. Co., 29 AD3d 547, 814 NYS2d, 687 [2006]; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776, supra ; Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 AD2d 374, 726 N.Y.S. 443 [2001]).

(Emphasis Added).

Furthermore, there should be “testimony about office procedures relating to the delivery of mail to the post office, whether a practice existed of comparing the names on the mailing list with the names and addresses on the envelopes for accuracy, or whether anyone routinely checked that the total number of envelopes matched the number of names on the mailing list.” Matter of Lumbermens Mutual Casualty Co. (Collins), 135 AD2d 373, 375, 521 NYS2d 432, 434 (1st Dept 1987). By inference, the affiant should state the following necessary details to show office practice and procedure including: (1) whether anyone complied a list of intended recipients; (2) whether anyone checked that a corresponding envelope containing a verification request or a denial of claim form was properly addressed for each recipient; and (3) whether anyone established a procedure for affixing the appropriate postage and delivering the mail to the post office. The failure to properly allege some of the above details have resulted in courts holding that the showing was insufficient because the affiant’s affidavit was conclusory. New York and Presbyterian Hospital, a/a/o Udland v Allstate Ins. Co., 29 AD3d 547, 814 NYS2d 687 (2d Dept 2006).

While plaintiff challenges the adequacy of the proof of mailings, defendant’s director of [*4]operations at its centralized mail facility located in Norcross, Georgia (“Data Service Center”), Stephen H. Howard, has provided a sufficient description of Travelers’ standard office practice or procedure used to ensure the denials were properly addressed and mailed as detailed below:

7.For the Court’s present purposes, the operation commences when a TRAVELERS employee completes an NF-10 denial, a verification request, or a delay letter from his or her desk top computer terminal, and executes the send and archive option provided. That action will cause the document to be electronically transmitted to the Data Service Center in Norcross. Following that transmission, and on that date, the document is printed. It is then mailed as indicated below.

8.Any document electronically forwarded is batched, printed, and then mailed on the day after it is transmitted. In other words, documents which are electronically transmitted are accumulated, processed and produced in the same out put job. An out put job number is assigned and utilized for tracking purposes, as further described hereafter.

9.Once transmitted, the documents are electronically batched and printed. When the documents are printed, they contain encoded information which identifies the particular batch they were processed in. The documents are electronically counted so that the numbers can be justified against the expected number of documents which are to be contained in any particular batch. When the numbers are reconciled, a notation is made on a tracking sheet for the batch. This tracking sheet is utilized at each stage of the mailing process, further described below, so as to ensure that the mailing, in fact, occurs.

10.Once printed and batched, the documents are placed into a machine designed to fold the documents and insert them into a window envelope where the address of the recipient is shown. The envelope is sealed, completing this part of the process. The machine counts the number of documents and envelopes processed. When the batch has been completed, the actual number is justified against the expected number, and the tracking sheet is documented. The control therefore establishes that all mail in a particular batch has gone through this step in the process. As a further control, a visual inspection is performed to ensure that the address of the recipient appears visible in the envelope window.

11.Once the above step is completed, the batch is brought to another machine. This machine weighs the envelope and places the appropriate amount of postage in accordance with size and weight. This machine also performs an electrical count of the items to be mailed, and the number is justified, against the expected count. The tracking sheet is duly noted for that batch of mail.

12.The mailings in any particular batch are then brought to a sorting machine. The sorting machine separates the individual envelopes in accordance with U.S. Postal guidelines, based upon zip code, for the purposes of facilitating proper and efficient mailings. The pieces going through this aspect of the process are again counted for the purposes of a final justification of the numbers. The sorted and justified mail is then placed into sealed containers and then placed into U.S. Postal Services designated containers. The containers are then delivered to a secure loading [*5]facility where they are picked up by U.S. Postal employees.

13.The final sorting area described above, as well as all other stations, are visually inspected throughout the day to be certain that no mail escaped the vigorous justification processes.

14.The Court is further advised that if at any point during the above described justification processes there is an indication of a missing piece of mail, the process is traced backward until the individual piece of mail is found. In the event a missing piece of mail is not found, an investigation takes place which includes a review of each piece of mail in the entire batch to determine if the particular missing mail can be identified, reprinted, and the batch then processed to completion. In the event identification of the missing piece of mail cannot be made with certainty, the entire batch will be reprinted and reprocessed in accordance with the procedures previously described.

15.Given the above, I can state with a reasonable degree of certainty that the documents described in the accompanying affidavit of Kelly A. Stotz, which had been mailed through the Norcross Data Service Center, were in fact processed in accordance with the procedures described above, and mailed to the identified recipient on the day after the date which appears on the denial and/or delay later.

(Affidavit of Stephen Howard in support of the Motions, sworn to on July 12, 2001, at ¶¶ 7-15).

Medical Necessity

Courts have held that plaintiffs need not demonstrate medical necessity as part of their prima facie case. Dermatossian v New York City Transit Authority, 67 NY2d 219, 224, 501 NYS2d 784, 787 (1986) (“A claimant to receive payment need only file a proof of claim’ . . . and the insurers are obligated to honor it promptly or suffer the statutory penalties . . .”); A.B. Medical Services PPLC a/a/o Sokol v Geico Ins., 2 Misc 3d 26, 27, 773 NYS2d 773, 774 (App Term 2d Dept 2003) (“We have rejected arguments that no-fault benefits claimant is obligated to prove the treatment’s medical necessity, at the claim stage or in support of its motion for summary judgment in a subsequent action on the claim . . .” [citations omitted]). The insurer may raise the defense that a claimed procedure was not medically necessary with a timely denial pursuant to the 30-day rule. Presbyterian Hospital in the City of New York v Maryland Casualty Co., 90 NY2d 274, 282, 660 NYS2d 536, 539-540 (1997). If there is an untimely disclaimer or denial in derogation of the 30-day rule, the insurer’s lack of medical necessity defense is precluded. Id.; Amaze Medical Supply Inc. a/a/o Darlington v Allstate Ins. Co., 2 Misc 3d 134(A), 784 NYS2d 918 (Table) (App Term 2d & 11th Jud Dists 2004).

Furthermore, in support of, or in opposition to, a summary judgment motion or at trial, the defense that the claim was not medically necessary must be supported by sufficient factual evidence or proof and it cannot simply be conclusory. Amaze Medical Supply Inc. a/a/o Bermudez v Eagle Ins. Co., 2 Misc 3d 128(A), 784 NYS2d 918 (Table) (App Term 2d & 11th Jud Dists, December 24, 2003). For instance, a recent Appellate Term decision citing Amaze Medical Supply Inc. a/a/o Bermudez v Eagle Ins. Co., held that where the defendant’s peer review report was sufficient to establish that the services were not medically necessary and the plaintiff failed to come forward with [*6]proof creating an issue of fact requiring a trial, the defendant was entitled to summary judgment dismissing the complaint. Boai Zhong Yi Acupuncture Services, P.C. a/a/o Pistsov v Progressive Casualty Ins. Co., NYLJ, June 6, 2007, p. 30, col. 2 (App Term 2d & 11th Jud Dists). See also Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986).

In this case, Dr. Miller’s orthopedic evaluation and affirmed peer review report on January 29, 2003, based on objective testing, were sufficient to demonstrate that plaintiff’s services rendered to Villatoro were not medically necessary. In response to Dr. Miller’s specifically detailed affirmed peer review report, plaintiff merely submits a terse affidavit from Ray Presutto, a licensed massage therapist, averring that “my office rendered reasonable and necessary medical services to plaintiff’s assignor(s) that were casually related and resulting from said accident.” (Affidavit of Ray Presutto in opposition to the Motions, sworn to on September 18, 2007.) This allegation is conclusory and insufficient as proof in admissible form to create a triable issue of fact requiring a trial as per Boai Zhong Yi Acupuncture Services, P.C. v. Progressive Co., supra .

Conclusion

Both of defendant’s motions for summary judgment dismissing the complaints are granted. The clerk is directed to enter a judgment dismissing both complaints.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.

Dated:New York, New York

October 29, 2007Hon. Shlomo S. Hagler, J.C.C.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated September 23, 2005, and from a judgment of the same court entered March 31, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered upon the order of September 23, 2005, awarded plaintiff the principal sum of $21,500.

Appeal from order dismissed.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 [*2]NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
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 affirmation by plaintiff, and various documents annexed thereto. The affirmation executed by plaintiff stated in a conclusory manner that the documents attached to his motion papers were his business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff failed to lay a proper foundation for the documents annexed to his moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to his moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff was insufficient to establish that he possessed personal knowledge of his office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to his moving papers, plaintiff failed to make a prima facie showing of his entitlement to summary judgment since he stated that his affirmation was based upon his review of said records (see Dan Med., P.C. v New York
Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In light of the foregoing, we do not address the parties’ remaining contentions. Pesce, P.J., Rios and Belen, JJ., concur.

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

Law Offices of Peter X. Dodge, P.C., Melville, N.Y. (Sean T. Carew and Alex Monroy of counsel), for respondent.

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 11, 2007, as denied that branch of their motion which was for summary judgment on the first cause of action to recover payments for medical services rendered by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen, and, upon searching the record, awarded the defendant summary judgment dismissing the first cause of action.

Ordered that the appeals by the plaintiffs Westchester County Medical Center, as assignee of Iesa Rivera, and Mary Immaculate Hospital, as assignee of Dwayne Cumberbatch, are dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen; and it is further,

Ordered that one bill of costs is awarded to the respondent.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile insurance benefits, insurance companies are required either to pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, the 30-day period in which to pay or deny a claim may be extended where the insurer [*2]makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]), and an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d at 513; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

The plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen (hereinafter the hospital) made a prima facie showing of its entitlement to judgment as a matter of law on the first cause of action to recover payment for medical services by submitting, inter alia, the requisite 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 pay the bill or issue a timely denial of claim form within 30 days (see 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, 683-684 [2007]; Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]). However, in opposition to the motion, the defendant submitted evidentiary proof that it timely requested additional information from the hospital to verify its claim, and that when the requested information was not received, it made a timely follow-up request. The defendant also offered unrebutted proof that the hospital ignored its verification requests. Since the requested verification was not provided, the 30-day period within which the defendant was obligated to pay or deny the hospital’s claim did not begin to run (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534-535 [2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]), and the first cause of action was premature.

The hospital’s contention that the additional information which the defendant requested to verify its claim was improper or irrelevant is advanced for the first time on appeal, and thus is not properly before this Court (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877 [2006]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 391, 392 [2004]; St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 294 AD2d 425, 426 [2002]; Weber v Jacobs, 289 AD2d 226, 227 [2001]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641, 642 [1995]). Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.