SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 3, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant opposed plaintiff’s motion for summary judgment, arguing that it had timely denied plaintiff’s claims on the ground of lack of medical necessity based upon a peer review report. The Civil Court denied plaintiff’s motion. This appeal by plaintiff ensued.

Plaintiff established that defendant did not pay plaintiff’s claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant’s denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff’s papers. Moreover, plaintiff’s affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant’s denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the [*2]
order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 03, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 17, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant’s motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. “If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner” (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant’s motion to dismiss the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 29, 2009, deemed from a judgment of the same court entered November 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,335.

ORDERED that the judgment is reversed, without costs, the order entered October 29, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been mailed in accordance with Crossland’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th [*2]Jud Dists 2007]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which had denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physicians and affidavits from its examining chiropractors, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only a reply affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we need not reach the parties’ remaining contentions.

Accordingly, the judgment is reversed, the order entered October 29, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 2011

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

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

In an action to recover assigned first-party no-fault benefits for medical services rendered, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered July 14, 2010, as denied that branch of their motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the plaintiff New York Hospital Medical Center of Queens, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action by submitting, inter alia, the requisite billing forms, the affidavits from its third-party biller, the certified mail receipts, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006], affd 9 NY3d 312 [2007]).

In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant’s verification requests, dated April 22, 2008, and May 22, 2008, respectively, requested “Rev. 01/04 NF5 & Assignment of Benefit Forms signed (No Stamps).” The plaintiff responded by providing exactly what was requested of it. The defendant cannot now complain that the NF5 or the assignment of benefits forms provided by the plaintiff were “outdated,” as its verification requests only sought the January 2004 version of the NF5 form and its accompanying assignment. Contrary to the Supreme Court’s conclusion, the affidavit of the defendant’s representative was insufficient to raise a triable issue of fact, as the plaintiff’s documented responses demonstrate that it [*2]complied with the defendant’s verification requests.

The defendant’s remaining contentions are without merit.

Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action. Dillon, J.P., Covello, Florio and Hall, JJ., concur.

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

Lawrence N. Rogak, LLC, Oceanside, N.Y. (David A. Gierasch of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated August 3, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment [*2]dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint and should have denied the defendant’s cross motion for summary judgment dismissing the complaint. Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.

—[*1] Law Offices of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for appellant. Steven J. Neuwirth, Garden City, for respondent.

Order of the Appellate Term of the Supreme Court in the First Judicial Department, entered June 24, 2009, which affirmed an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about February 15, 2007, finding the issue of which insurer is the primary insurer must be submitted to arbitration, unanimously affirmed, with costs.

Insurance Law § 5105 (b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12 (b) provides that “[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part.”

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not “otherwise . . . liable” for the payment of first-party benefits. However, 11 NYCRR 65-4.11 (a) (6) provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” Thus, as “the first insurer to whom notice of claim [was] given” (11 NYCRR 65-3.12 [b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which “[c]learly . . . is an inter-company dispute subject to mandatory arbitration” (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). Concur—Saxe, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ. [Prior Case History: 24 Misc 3d 43.]

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 10, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that there was a lack of
coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise
out of an insured incident. The Civil Court denied both plaintiff’s motion and defendant’s cross motion, finding that triable issues of fact existed. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator’s affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing [*2]the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 14, 2011