Supreme Court, Nassau County

001943/07

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

Daniel Palmieri, J.

The motion by the plaintiff Westchester Medical Center (“WMC”) pursuant to CPLR 3212 for summary judgment is denied. The cross motion by the defendant Allstate Insurance Company (“Allstate”) pursuant to CPLR 3212 for summary judgment is granted and the complaint is dismissed.

This is an action for payment of no-fault benefits by a provider of medical services, as assignee of the covered person’s claim therefor. It is undisputed that assignor Jose Correa was a patient at plaintiff’s facility from July 28 through August 31, 2006. By way of affidavit of an account representative for the plaintiff, Peter Kattis, and associated documentation, the plaintiff has demonstrated that a billing in the amount of $121,755.40 for this admission was mailed to the defendant on September 14, 2006 and received September 19, 2006. WMC also presents a partial denial of claim form dated October 23, 2006, which is claimed to be untimely and, in addition, defective in that it is incomplete and incorrectly states the amount in dispute. On December 15, 2006 the defendant made a payment of $37,560.01 to Taylor Care Center, leaving an unpaid balance of $84,195.39.

The foregoing constitutes proof sufficient to make out a prima facie showing that the plaintiff is entitled to judgment as a matter of law for the balance stated, with statutory interest and attorneys’ fees, as it establishes that the defendant failed either to pay the hospital bill or to issue a timely denial within 30 days of receipt of the claim. Insurance Law § 5106(a); 11 NYCRR 65-3.8(a)(1); see, Hempstead Gen. Hosp. v Insurance Co. of N.Am., 208 AD2d 501 (2d Dept. 1994). The burden thus shifts to Allstate to demonstrate that issues of fact exist with regard to plaintiff’s right to the relief sought in its complaint. See generally, Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

In response, however, the defendant has presented evidence demonstrating that issues of fact exist precluding judgment in plaintiff’s favor. By way of affidavit of a no-fault claims representative [*2]employed by Allstate, Dietra Tripp, and associated documentation, the defendant has met its burden.

On September 29, 2006 a written statement was sent to Taylor Care Center requesting its records regarding Correa’s admission. Tripp states that upon receipt of the records, and within 30 days thereafter, a statement indicating approval of a partial payment and denial of the balance was issued on October 23, 2006. An NF-10 form bearing this date and containing this information is annexed to her affidavit. Although WMC’s presents proof in reply that it voluntarily mailed complete medical records to Allstate, which were received on September 30, 2006 (i.e., the verification request of September 29 was unnecessary and crossed in the mail), this does not mean that the verification request itself was improperly issued, as at the time Allstate did not yet have the records it needed to evaluate the claim. The request for verification therefore tolled the 30-day period to pay or deny the claim until the records were received. 11 NYCRR 65-3.5(a),(b); 65-3.8; see, New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 (2d Dept. 2004). Accordingly, an issue of fact exists as to the timeliness of the denial.

As noted above, WMC’s attorney also claims that the denial itself is defective in that Taylor Care Center is named as the provider, and that the stated amount billed and amount in dispute varies from the plaintiff’s billing claim.

However, in a footnote found in Allstate’s opposing papers the discrepancy is explained as reflecting the initial hospital charges before an apparent audit by the plaintiff itself, which then sought the lower amount stated in its complaint. Further, the difference in facility name has been adequately addressed by Allstate’s proof that WMC and the Taylor Care Center are effectively one and the same for present purposes. Specifically, Tripp states in reply, and presents documentary proof, that the $37,560.01 check was accepted and deposited into the account of Westchester County Health Care Corporation, the same account where WMC’s checks are deposited. In addition, the Court notes that in stating the amount still due, WMC’s affiant acknowledges in his own moving affidavit that this payment reduced the total billed to the amount owed, making no distinction between the two entities.

Accordingly, the motion is denied.

The cross motion is granted. Allstate has presented prima facie proof that its coverage limits have been exhausted. This is supported by the statement of its claims representative, who states that the coverage available under its policy was $150,000, and that the balance sought in this action exceeds those limits. Allstate also presents a payment log document entitled Medical Bill-Loss History, introduced as a business record by Tripp, which indicates that Allstate paid a total $149,909.60 to various providers who cared for Correa, including plaintiff. Given the de minimus difference between the payments indicated in the Medical Bill-Loss history and the undisputed coverage limits, the foregoing constitutes sufficient proof that the defendant is not liable for the charges sought in this action, as they exceed Allstate’s maximum exposure under the policy. New York and Presby. Hosp. v Allstate Ins. Co., 28 AD3d 528 (2d Dept. 2006); see also, Mount Sinai Hosp. v Zurich Am. Ins. Co., 15 AD3d 550 (2d Dept. 2005); Hosp. for Joint Diseases v State Farm Mut. Auto. [*3]Ins. Co., 8 AD3d 533 (2d Dept. 2004); New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra. Indeed, it should be noted that an insurer’s defense that policy limits have been reached by payments to eligible providers cannot be waived by a issuing a denial, or making a part payment, beyond the periods established by the Insurance Law and its allied regulations. New York and Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 (2d Dept. 2004).

In response, the plaintiff has presented no evidence that would place in issue the foregoing proof of exhaustion of benefits as a complete defense to its claim. Its only argument of substance is that payment to other providers was made by Allstate after it received plaintiff’s bill on September 19, 2006, but Allstate was entitled to do so while withholding payment to the plaintiff in view of its timely issued request for verification. See, Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 (2d Dept. 2005). Accordingly, summary judgment is granted to the defendant on its cross motion.

This shall constitute the Decision and Order of this Court

E N T E R

Dated: October 22, 2007

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice

To:

Joseph Henig, P.C.

Attorney for Plaintiff

1598 Bellmore Avenue

P.O. Box 1144

Bellmore, NY 11710

Stern & Montana, LLP

Attorney for Defendant

115 Broadway

New York, NY 10006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered May 25, 2006. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary
judgment. The court below granted plaintiff’s motion to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Turning to the merits of defendant’s cross motion for summary judgment, the court below [*2]correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not sufficiently establish that it mailed the verification requests and follow-up verification requests or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, defendant did not demonstrate that plaintiff’s causes of action were premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, to the extent defendant denied the claims based on fraud, the affidavits submitted by defendant were inadequate to establish as a matter of law “that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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 (Joseph Esposito, J.), entered September 22, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross motion for summary judgment was granted. 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.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 7, 2005. The judgment denied the petition to vacate the master arbitrator’s award.

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

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: October 19, 2007

[*1]

Supreme Court, Appellate Term, First Department, October 17, 2007

APPEARANCES OF COUNSEL

Votto, Cassata & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

{**17 Misc 3d at 98} OPINION OF THE COURT

Per Curiam.

Order, dated February 6, 2006, affirmed, with $10 costs.

In this action to recover first-party no-fault benefits, plaintiff medical provider was awarded summary judgment on its claims for payment for three MRIs performed on its assignor, following an automobile accident on November 27, 2003. The MRIs revealed injuries to the assignor’s neck, lower back and knee. It is uncontroverted that plaintiff’s claims were timely submitted. Nor is it disputed that defendant insurer issued NF-10 forms within 30 days, contending, as the sole reason for its denials, that the assignor’s injuries did not arise out of the subject automobile accident, a conclusion based exclusively on a written accident reconstruction report (referred to by defendant as a low-impact study). The study’s conclusion that the subject accident posed “no risk of injury” to some unknown “volunteer test subjects” was reached without any consideration of the assignor’s claimed injuries. The motion court granted summary judgment to plaintiff, holding that the low-impact study and the affidavit of the engineer who drafted the report, while admissible, did not suffice to raise triable issues of fact as to whether the assignor’s claimed injuries arose out of the accident.

As a general rule, expert opinion evidence based upon accident reconstruction studies is admissible in common-law negligence actions on issues related to causation. For example, in Valentine v Grossman (283 AD2d 571 [2001]), a negligence action, the testimony of a biomechanical engineer was found probative on the issue of whether an automobile accident was severe enough to have caused the injuries sustained by the plaintiff. The engineer’s opinion therein identified a specific injury, i.e., a herniated disc, and a correlation between the injury and the biomechanics of the accident. Here, by contrast, defendant’s low-impact study was conducted without a medical file review or an independent assessment of the assignor’s claimed injuries, if [*2]indeed they were known when the report was prepared. The only aspect of the report remotely bearing on any causation issue was the conclusory statement that the accident{**17 Misc 3d at 99} “posed virtually no risk of injury to voluntary test subjects.” The issue, therefore, is whether such a study is sufficient to deny summary judgment in a first-party no-fault action where plaintiff has made out a prima facie showing of entitlement to judgment.

In the typical negligence action, plaintiff’s burden of establishing causation is met by a showing that the accident was a proximate cause of the claimed injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). However, in an action to recover first-party no-fault benefits, a plaintiff bears no such burden and establishes his or her prima facie case by proof that the claim form was mailed and received, and that the insurer failed to pay within the 30-day statutory period (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In essence, causation is presumed since “it would not be reasonable to insist that a [medical provider] must prove as a threshold matter that its patient’s condition was ’caused’ by the automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 20 [1999]). Thus, the burden is on the defendant insurer to come forward with proof establishing by “fact or founded belief” its defense that the claimed injuries have no nexus to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While generally speaking, accident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries. This is certainly true in the first-party no-fault scenario, where an insurer disclaiming coverage has the burden of establishing that “the medical condition for which the assignor was treated was not related to the accident at all” (Mount Sinai v Triboro Coach, 263 AD2d at 18-19 [internal quotation marks omitted]). Whether a causative nexus exists between an accident and injury “cannot be resolved without recourse to the medical facts” (id. at 19).

Here, defendant offered no medical evidence whatsoever to demonstrate a lack of causation. It failed to perform a medical examination of plaintiff’s assignor or conduct a peer review of his medical treatment in the aftermath of the accident. Absent from defendant’s denial forms was any allegation that the MRIs were not medically necessary or that plaintiff’s assignor was not injured as described in the MRI reports. Nor did defendant rely on any evidence of an event or ongoing chronic condition in the{**17 Misc 3d at 100} assignor’s past medical history to explain his injuries. Significantly, the low-impact study specifically contains a disclaimer that the engineering consulting firm which produced the report “did not perform a medical file review or an assessment of injuries alleged by [the assignor].”

Defendant’s low-impact study contains a “one size fits all,” generalized “medical” component, which does not explain how the assignor’s injuries are causally incompatible with the subject accident. As the concurring opinion correctly points out, the author of the low-impact study, in the absence of a medical review of plaintiff’s injuries, had no way of knowing whether “the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion” (concurring op at 174).

It bears mention that the low-impact study here under review appears to have been ordered five days before the defendant insurer acknowledged having received the claims for the MRIs. Why an insurer would incur the expense of an accident reconstruction to eliminate an [*3]accident as a cause of injuries before receiving a diagnosis is yet to be explained by defendant. We acknowledge that the no-fault statute, together with the rules and regulations promulgated thereunder, do not distinguish between diagnostic testing and treatment with respect to the denial grounds available to an insurer. However, the purpose of the statutory scheme, to streamline the processing of claims for basic economic loss arising from automobile accidents, necessarily would be frustrated if an insurer could deny reimbursement to a medical provider who performs appropriate diagnostic tests in response to a patient’s complaints, based solely upon a generic brand of accident reconstruction which gives no consideration to the patient’s diagnosis or injuries.

We do not say that there can never be a situation where a low-impact study, standing alone, would suffice to create an issue of fact on causation in a first-party no-fault benefit case. Such a situation might be presented, for example, where an assignor has sustained an identifiable injury, the cause of which is so clearly unrelated to the biomechanics of the accident as to require no corroborative medical proof or where the assignor has not sustained any injury. Such is not the case here.

Finally, the concurring opinion raises an issue neither briefed by the parties nor central to the proper resolution of this case, in taking exception with our (and the motion court’s) description of the defense sought to be raised by the low-impact study{**17 Misc 3d at 101} as a lack of coverage defense, reserving that description for injuries which “predated the accident” (concurring op at 105). Instead, the concurrence would characterize the defense advanced by the insurer, i.e., that the subject injuries were unrelated to the accident, as “a disclaimer based on the breach of a policy condition.” We disagree.

Citing as a source for guidance its previous holdings in Albert J. Schiff Assoc. v Flack (51 NY2d 692 [1980]) and Zappone v Home Ins. Co. (55 NY2d 131 [1982]), the Court of Appeals in Chubb (90 NY2d at 201), characterized as a “coverage matter” medical services rendered to treat injuries that did not arise from a covered accident, reasoning that there was no “insurance in effect” to cover such treatment. This is so whether the uncovered injuries occurred before or after the subject accident, because, simply put, the incident which caused the injuries did not fall within the four corners of the policy. Thus, unlike our concurring colleague, we find no basis to limit the applicability of a lack of coverage defense solely to cases involving “a previous injury or condition” (concurring op at 107).

McCooe, J. (concurring). The majority opinion raises two issues common to numerous first-party no-fault benefit actions, the admissibility of a “low-impact study” and the scope of a Chubb no coverage defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Since there may be a disagreement with this court and the Appellate Term, Second and Eleventh Judicial Districts, on the first issue and there is a disagreement with both on the second issue, I am writing separately to state my opinion.

First, since the low-impact study is being rejected as a defense in this summary judgment [*4]motion as a matter of law, I will accept as true the statement of facts relied upon by defendant’s expert, Alfred Cipriani, employed by SEA and the procedures adopted in his project summary which reads in pertinent part:

“I. PROJECT SUMMARY

“PROJECT ASSIGNMENT

“On January 21, 2004, SEA, Ltd. (SEA) was asked to review file material related to a two-vehicle accident that occurred on November 27, 2003, in Bronx, New York. At approximately 6:50 a.m., Mr. Mahamdou Hydara, driving a 1999 Ford Explorer (Ford) owned by Mr. Sulayman Kamara, was traveling southbound on Throgs Neck Expressway, approaching{**17 Misc 3d at 102} the Throgs Neck Bridge toll plaza. A 1991 Volkswagen Jetta (Volkswagen), driven by Ms. Theresa Marone, changed lanes and struck the driver’s side of Mr. Hydara’s Ford. As a result of the impact to his vehicle, Mr. Hydara was allegedly injured. This investigation was assigned to the direction of SEA Technical Consultant/Accident Reconstructionist Alfred L. Cipriani, ACTAR, as SEA Project No. 603622.

“SCOPE OF PROJECT

“Specifically, SEA was asked to consult with respect to this accident, to determine the Ford’s average accelerations, and to compare those results with published crash test studies.

“CONCLUSIONS

“º The average rearward acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 milliseconds (msec) during the collision of November 27, 2003.

“º The average left-to-right acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 msec during the collision of November 27, 2003.

“º The cited scientific research shows that the average accelerations of Mr. Hydara’s Ford posed virtually no risk of injury to volunteer test subjects.

“II. PROCEDURES

“1. SEA reviewed file material related to this accident including:

Ҽ Police Accident Report (NYC) # 3641

Ҽ Report of Motor Vehicle Accident completed by Mr. Hydara

“º Insured’s Supplementary Accident Report completed by Mr. Hydara

Ҽ A repair estimate for the Ford

Ҽ A prior damage estimate for the Ford

Ҽ A description of the accident

Ҽ Four color photocopied photographs of the Ford

Ҽ A copy of the written statement of Mr. Hydara

Ҽ A copy of the written statement of Mr. Kamara

“2. SEA researched specifications and crash test data for the vehicles involved in this accident.

“3. SEA calculated crush stiffness coefficients for{**17 Misc 3d at 103} the vehicles involved in this accident.

“4. SEA performed a low speed impact analysis^[FN1]

“5. SEA reviewed published volunteer test studies involving low speed impacts.”

Cipriani also relied upon Hydara’s statement of facts regarding the accident. The police report indicates that the “cost of repairs to any one vehicle will be more than $1000.00.”

The “Methods of Analysis” is an “engineering analysis of low-speed impacts, depending on the nature of the impact.” There are four types of impacts referred to: bumper to bumper, override and underride, lateral impacts, and sideswipes. While it states that “SEA engineers chose an engineering analysis method most appropriate for the type of impact being studied,” after carefully reviewing the facts, it is not stated which type they are relying on, but I assume it is “lateral impacts” where “it is important to determine the side stiffness for the appropriate vehicle” and “average lateral acceleration must also be reduced by an amount equivalent to the sideways sliding resistence of the vehicle tires.”

Finally the “Signatures” page states that: “SEA did not perform a medical file review or an assessment of injuries alleged by Mr. Hydara. SEA hereby certifies the expressed opinions and conclusions have been formulated within a reasonable degree of professional certainty.”

The Appellate Term, Second and Eleventh Judicial Districts, has held that a low-impact study may constitute a proper basis for denial of a summary judgment motion provided it is in admissible form^[FN2] (see AB Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists 2006]). It relied on Appellate Division analysis in determining that an accident analysis report is relevant to the issue of causation (see Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists 2005], [*5]citing Valentine v Grossman, 283 AD2d 571 [2d Dept 2001]). Furthermore, referring to the coverage defense, a low-impact study has been found to be “sufficient to demonstrate{**17 Misc 3d at 104} that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident’ ” (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525[U],*2 [2005],^[FN3] quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

The first issue here is whether Cipriani’s affidavit, together with the low-impact study report, were sufficient to raise an issue of fact to defeat plaintiff’s motion for summary judgment. After analyzing the police report, repair estimates, written statements made by the drivers, and photographs of the Ford, Cipriani opined that the “average acceleration of [assignor’s] Ford posed virtually no risk of injury to volunteer test subjects.” There is no indication that he factored in the Ford striking the toll booth barrier as affecting the “average acceleration.” He did not (1) calculate the forces generated by the accident, (2) correlate the forces to the injuries allegedly sustained by the plaintiff nor (3) conclude that there was not enough force generated in the collision to cause said injuries (cf. Valentine v Grossman, 283 AD2d at 572 [biomechanical experts correlated the forces generated by the collision to the injuries allegedly sustained by the injured plaintiff and opined that there was not enough force generated to cause said injuries]).

The low-impact study report states that neither a medical file review nor an assessment of the injuries alleged by the plaintiff was performed and did not indicate whether the plaintiff was wearing a seat belt. Therefore he did not know if the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion. This distinguishes Valentine v Grossman (283 AD2d 571 [2001]), where the expert rendered an opinion as to whether there was sufficient force to cause a herniated disc.

Cipriani’s study is general and not specific to the plaintiff but to “volunteer test subjects” whose age and state of health is not indicated so as to form a proper basis for comparison. The report does not and could not explain how the low-impact test results demonstrated that the unknown plaintiff’s injuries were unrelated to the subject accident. While Cipriani opined that the acceleration of the plaintiff’s vehicle “posed virtually no risk of injury,” he did not give an opinion as to whether this particular accident caused the injuries allegedly sustained by the plaintiff.{**17 Misc 3d at 105} Therefore the study was too vague and conclusory to raise a triable issue of fact or to support the defendant’s conclusion that the accident was not severe enough to have caused the injuries allegedly sustained (see Bender v Gross, 33 AD3d 417 [1st Dept 2006]; Maggiotta v Walsh, 306 AD2d 447 [2d Dept 2003] [vague and conclusory expert affidavit submitted in opposition to summary judgment motion failed to raise a triable issue of fact regarding causation]).

The second issue is whether the defense raised is properly a lack of coverage defense as discussed in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) or a disclaimer based on the breach of a policy condition. I disagree with the majority and the Appellate Term, Second and Eleventh Judicial Districts, that it is a lack of coverage defense. Furthermore it should not be an issue here since neither the Civil Court nor the parties contend that it is. This should explain why the “description of the defense . . . as a lack of coverage defense” (majority op at100-101) first raised by the majority was not briefed. The defendant timely filed three denial of claim forms within the [*6]30-day rules and regulation period which read in part: “the results of a low-impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of 11/27/2003 and are inconsistent with a collision of this nature . . . .”

Nevertheless, since the majority agrees with the Appellate Term, Second and Eleventh Judicial Districts, on this issue, I will explain the reasons for my disagreement. The principal reason is that the “exceptional exemption” granted in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) when the insurer fails to timely disclaim should be limited to factual situations where the defense is that the injuries predated the accident in order to find that they were “causally unrelated to the accident.”

The relevant portion of the decision in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (7 Misc 3d 129[A], 2005 NY Slip Op 50525[U],*1-2 [2005]) reads:

“Inasmuch as defendant failed to pay or deny the claim within the 30-day [prescribed] period [11 NYCRR 65-3.8(c), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b])], it [was] precluded from raising most defenses{**17 Misc 3d at 106} (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant [was] not precluded from asserting the defense that the alleged injuries were . . . causally [un]related to the accident [despite the untimely denial of the claim] (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The ‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’ [accompanied by an affidavit] of the Technical Consultant/Accident Reconstructionist who prepared the report . . . was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident‘ (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199 . . . ). [Accordingly], since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment [should not have been granted and the matter is remanded for further proceedings].” (Emphasis added.)

The Ocean case clearly expresses the legal issues under discussion. The two cases relied upon in Ocean are Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

I agree that the Ocean case cites the applicable law but I disagree with the interpretation and that they are factually similar to Ocean or this case. They are both factually dissimilar because both defendants in the cited cases claimed that there was no coverage because the claimed injury predated the accident. The defendant in Chubb successfully claimed that the “injuries were sustained in a separate work-related accident about a year prior to the automobile accident” and the Court found that the untimely disclaimer was an “exceptional exemption” that did not prevent the defendant from raising the lack of coverage defense because the injury was unrelated to the accident (Chubb, 90 NY2d at 198). [*7]

The defendant in Mount Sinai unsuccessfully claimed that the plaintiff’s condition was entirely unrelated to the accident because she “had previously suffered from an unspecified ‘brain disorder . . . manifested by seizures and hospitalizations’ ” and her condition was not incurred in the accident (Mount Sinai,{**17 Misc 3d at 107} 263 AD2d at 14). The Court held that the “exceptional exemption” from preclusion for failure to timely disclaim “applies only where the medical condition for which the patient was treated was not ‘related to the accident at all’ ” (Mount Sinai, 263 AD2d at 18-19). The Court goes on to state that the issue cannot be resolved without resort to the medical facts and that the “defendant has the burden to come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its belief]’ that the patient’s treatment was unrelated to his or her automobile accident” (Mount Sinai, 263 AD2d at 19-20). Speaking as to the need for medical proof, the Court goes on to state, “Indeed, this case is a vivid illustration of why an expert’s affidavit will usually be necessary to effectively establish the basis of an insurer’s founded belief” (Mount Sinai, 263 AD2d at 20).

Based upon the foregoing, I disagree that a “low-impact study” can be the basis for a “founded belief” that the alleged injuries are “not related to the accident at all” and form the basis for a lack of coverage defense. This “exceptional exemption” first spelled out in Chubb and later in Mount Sinai only applies where the defendant comes forward with medical proof for its founded belief that the medical treatment was not related to the accident at all “but to a previous injury or condition.”

The overly broad characterization of a breach of policy condition or policy exclusion as a coverage defense nullifies the 30-day disclaimer rule.

McKeon, P.J., and Schoenfeld, J., concur; McCooe, J., concurs in a separate opinion.

Footnotes

Footnote 1: A. Toor et al., Practical Analysis Technique for Quantifying Sideswipe Collisions, SAE Paper 1999-01-0094, 1999.

Footnote 2: The Civil Court determined that Mr. Cipriani’s affidavit, which referenced and attached the low-impact study report, was in admissible form and plaintiff does not challenge this finding or the admissibility of the report.

Footnote 3: The Ocean case will be discussed in greater detail on the coverage issue.

—[*1] Gary Tsirelman, P.C., Brooklyn, N.Y. (Max Valerio of counsel), for appellant.

Marshall & Marshall, Jericho, N.Y. (Craig B. Marshall of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated September 15, 2005, confirming an award of an arbitrator dated June 24, 2005 denying payment of no-fault insurance benefits, the appeal is from an order of the Supreme Court, Kings County (Ruchelson, J.), dated June 22, 2006, which denied the petition and granted the respondent’s cross petition to confirm the award of the master arbitrator.

Ordered that the order is reversed, on the law, with costs, the awards of the master arbitrator and arbitrator are vacated, and the matter is remitted to the arbitrator for further proceedings consistent herewith.

The petitioner, Health & Endurance Medical, P.C. (hereinafter HEM), as assignee, sought payment of no-fault insurance benefits from the respondent, Deerbrook Insurance Company (hereinafter Deerbrook) for medical services provided to an insured by an independent contractor. After arbitration, payment was denied on the ground that HEM was not a provider of health care services within the meaning of the no-fault regulations and, therefore, was not entitled to direct payment of such benefits. That award was confirmed by a master arbitrator. The Supreme Court, inter alia, denied HEM’s petition to vacate the award of the master arbitrator. We reverse.

In relevant part, the no-fault regulations provide for direct payments of no-fault benefits to “providers of health care services” (11 NYCRR 65-3.11 [a]). Under the circumstances [*2]of this case, the applicability of 11 NYCRR 65-3.11 (a) was impermissibly raised, sua sponte, by the arbitrator (see 11 NYCRR 65-4.4 [e]). Since the arbitrator never ruled on the only issue raised by Deerbrook relating to the need for the services in question, this matter must be remitted to the arbitrator for a determination of this issue. Miller, J.P., Ritter, Goldstein and Dickerson, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

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

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319 [1994]; Matter of Shand
[Aetna Ins. Co.], 74 AD2d 442 [1980]). Consequently, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]), and we modify the judgment accordingly.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: October 10, 2007

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

Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated January 5, 2007, as denied that branch of its motion which was for summary judgment on the first cause of action and granted that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action.

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

On or about January 29, 2006, Donald Gjelaj, the plaintiff’s assignor, was involved in a single-vehicle accident on a wet, curved roadway. After the accident, Gjelaj was arrested for driving while intoxicated. Gjelaj sought no-fault benefits under a policy of insurance issued by the defendant. The defendant sent a verification request dated January 31, 2006, to Gjelaj seeking additional information regarding his alleged intoxication. On or about February 10, 2006, Gjelaj responded to the request, including with his response copies of the traffic ticket issued after the accident charging him with driving while intoxicated and Gjelaj’s handwritten statement that he had “not gone to court yet” on the charge. On or about February 16, 2006, the defendant received a copy of the police accident report indicating that Gjelaj was arrested for driving while intoxicated at the [*2]scene of the accident. Within one week after receiving Gjelaj’s response, the defendant sought additional verification regarding Gjelaj’s intoxication from, among others, Arden Hill Hospital, where Gjelaj had been taken after the accident.

In the interim, on or about February 24, 2006, the defendant received a hospital facility form (NYS Form NF-5) from the plaintiff to recover no-fault benefits for services it rendered to Gjelaj, its assignor. By letters dated March 8, 2006, and April 11, 2006, the defendant advised the plaintiff that it was investigating the claim for possible intoxication and waiting for toxicology reports from either Arden or the New York State Police (hereinafter the State Police). On April 19, 2006, the defendant received, by facsimile from Gjelaj’s counsel, a copy of a blood alcohol test (hereinafter the BAC report) taken by the State Police which stated in the subject line Gjelaj’s name and the date of the accident, and reported a blood alcohol level of 0.13. The defendant sent the plaintiff a denial of claim on the ground of intoxication dated April 24, 2006.

When a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3]). “[W]hen an insurer believes that intoxication may have been a contributing cause to an accident, the insurer is entitled to all available information regarding the insured’s condition at the time of the accident” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997], citing 11 NYCRR former 65.15 [g] [7]). Pursuant to 11 NYCRR former 65.15 (g) (7), proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished to the insurer by the applicant or the authorized representative.

“Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits . . . or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claims” (11 NYCRR 65-3.5 [a]). “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). “The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]).

The plaintiff made a prima facie showing of entitlement to summary judgment on its first cause of action to recover no-fault benefits by demonstrating that the prescribed statutory billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). In opposition, however, the defendant raised a triable issue of fact that the verification requests seeking information regarding Gjelaj’s alleged intoxication were timely and properly sent to, among others, Gjelaj, the plaintiff’s assignor (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; 11 NYCRR 65-3.5 [a], [b]; former 65.15 [g] [7]).

In addition, the defendant raised a triable issue of fact through its submission of the police accident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident and that such intoxication caused the accident. The PAR was properly considered by the Supreme Court under the business record exception to the hearsay rule to the extent that it was based upon the [*3]personal observations of the police officer present at the scene and under a business duty to make it (see CPLR 4518 [a]; Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). Based upon the police officer’s personal observations and knowledge, Gjelaj’s vehicle left the roadway and struck a tree, and Gjelaj was arrested for driving while intoxicated. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment.

However, the defendant failed to make out a prima facie showing on its cross motion for summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In the first instance, the defendant was unable to establish, prima facie, that Gjelaj was intoxicated at the time of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]). The result of a blood alcohol test may be admitted on the issue of intoxication in litigation involving an exclusion in a no-fault policy provided that a proper foundation is laid (see Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]). At bar, the defendant failed to lay a proper foundation for admission of the BAC report by proffering any evidence regarding the care in the collection of Gjelaj’s blood sample and its analysis (see 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]). Thus, while the defendant raised a triable issue of fact regarding intoxication sufficient to defeat the plaintiff’s motion, on this record, it cannot establish intoxication as a matter of law. We note in this regard that although the BAC report was inadmissible to establish the defendant’s prima facie case on its cross motion (see generally Beyer v Melgar, 16 AD3d 532, 533 [2005]), the Supreme Court properly considered it in opposition to the plaintiff’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Phillips v Kantor & Co., 31 NY2d 307 [1972]).

In addition, the defendant failed to establish, prima facie, that Gjelaj’s alleged intoxication was the proximate cause of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]). Since the defendant failed to make a prima facie showing, the Supreme Court should have denied that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action regardless of the sufficiency of the plaintiff’s opposing papers (see North v Travelers Ins. Co., 218 AD2d 901 [1995]; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Schmidt, J.P., Santucci, Skelos and Balkin, JJ., concur.

—[*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 benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Robbins, J.), entered June 30, 2006, which granted the motion of the plaintiff New York Hospital Medical Center of Queens for summary judgment on the second and third causes of action, and (2) a judgment of the same court entered July 11, 2006, which is in favor of the plaintiff New York Hospital Medical Center of Queens and against it in the principal sum of $6,223.62.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the order entered June 30, 2006, is modified by deleting the provision thereof granting that branch of the motion of the plaintiff New York Hospital Medical Center of Queens which was for summary judgment on the second cause of action, and substituting therefor a provision denying that branch of the motion, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment; and it is further,

Ordered that one bill of costs is awarded to the appellant. [*2]

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 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]).

The plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) established, prima facie, its entitlement to judgment as a matter of law with respect to the second cause of action by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). However, in opposition to the motion, the defendant submitted admissible evidence which raised triable issues of fact as to the date on which the plaintiff mailed the no-fault claims to the defendant and whether the verification requests, which would serve to extend the defendant’s time within which to pay or deny the claim, were pending. Contrary to the Supreme Court’s determination, the defendant’s request for additional verification tolled the defendant’s time within which to pay or deny the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1], [2]) until it received all of the relevant information requested (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005], mod 8 NY3d 294 [2007]). Moreover, the affidavit and documentary evidence submitted by the defendant were in admissible form since the affiant stated her basis for knowledge of the facts and laid a proper foundation for introduction of the documents (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 772 [2006]). Thus, the Supreme Court should have denied summary judgment as to the second cause of action.

The evidence submitted by the plaintiff in support of that branch of its motion which was for summary judgment on the third cause of action satisfied its burden of establishing, prima facie, its entitlement to judgment as a matter of law (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). While the defendant initially denied that the plaintiff provided it with the requested verification material, it failed to rebut the plaintiff’s showing that the verification material was actually mailed to the defendant. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, each bearing a notation to the relevant medical records, such that the defendant’s denial of receipt of the verification material was insufficient to raise a triable issue of fact (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 982 [2007]; Matter of Fodor v MBNA Am. Bank, N.A., 34 AD3d 473 [2006]).

Motion by the respondent on appeals from an order of the Supreme Court, Nassau County, entered June 30, 2006, and a judgment of the same court entered July 11, 2006, to strike pages 18 through 20 of the appellant’s brief on the ground that it improperly raises arguments for the first time on appeal. By decision and order on motion of this Court dated May 31, 2007, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

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

Ordered that the motion is denied. Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered December 8, 2005. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed with $25 costs to respondent.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54
NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: October 03, 2007