SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 10, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an “affirmation” from plaintiff’s counsel, an affidavit by an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s
business records. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary [*2]judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, 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

(Johnny Lee Baynes, J.), entered July 7, 2005. The order denied plaintiff’s motion for
summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. The court below denied plaintiff’s motion for
summary judgment, holding that there was an issue of fact as to whether the injuries
alleged by plaintiff’s assignor were caused by a covered accident. The instant appeal
by plaintiff ensued.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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 that it submitted its claim forms to defendant thereby entitling it to summary judgment (see Bath Med. Supply, Inc. v [*2]Deerbrook Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op_____ [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY
Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied. In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 19, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiff moved for summary judgment, and defendant opposed. The lower court denied plaintiff’s motion and this appeal ensued.

Under the circumstances presented, we find that plaintiff’s motion was properly denied, as defendant raised a triable issue which was “premised on the fact or founded belief that the alleged injury…[did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the order is affirmed.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Sharon Commissiong, J.), entered April 19, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits for an MRI provided its assignor, the court denied plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment on the ground that defendant’s peer review report created a triable issue of the MRI’s medical necessity. After receiving plaintiff’s claim, defendant informed plaintiff by letter that the claim’s “processing” would be delayed pending receipt of “confirmation of medical necessity
from the referring physician.” Defendant received the verification 13 days later and issued its denial 30 days thereafter on the basis of the peer review report which was compiled, in part, on information received from the physician.

Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. The court below rejected the argument and we affirm for the reasons set forth in Doshi Diagnostic Imaging Servs. v State Farm Insurance (___ Misc 3d ___, 2007 NY Slip Op _______, decided herewith). [*2]

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 16, 2007

[*1]

Supreme Court, Appellate Term, Second Department, March 16, 2007

APPEARANCES OF COUNSEL

Friedman, Harfenist, Langer & Kraut, Lake Success (Neil Torczyner of counsel), for appellant.

{**16 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Order 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 dismissing the action as premature due to outstanding requests for verification. The court granted defendant’s cross motion and this appeal by plaintiff ensued.

After receiving the claim, defendant issued a letter to the prescribing physician requesting verification of the medical necessity of the MRI performed at plaintiff’s facility and detailing the information sought. On the same day, defendant advised plaintiff by letter that the claim’s determination would be delayed pending receipt of medical necessity verification from the prescribing physician. The initial verification request remained unsatisfied after 30 days, whereupon defendant followed up its request to the prescribing physician and sent plaintiff a copy of the request and a second letter, nearly identical to the first, to the effect that a decision on [*2]the claim was being delayed pending medical necessity verification. Plaintiff objects only to defendant’s failure to seek the verification directly from plaintiff as, plaintiff insists, the regulations require. Contrary to plaintiff’s contention, the record establishes that the letters sent by defendant sufficed to toll the statutory claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.2 [c]; 65-3.5 [a], [c]; 65-3.6 [b]).

The insurance regulations require that there be “good reasons” to demand verification (11 NYCRR 65-3.2 [c]), that the demand be directed “as expeditiously as possible” (id.) to the “parties required to complete them” (11 NYCRR 65-3.5 [a]), and that the insurer is entitled to receive the verification “directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]). We do not construe the reference to “parties” to be limited to an applicant for no-fault benefits. By its terms, 11 NYCRR 65-3.6 (b) requires the insurer to inform the “applicant” of the nature of previously requested and unproduced verification, the identity of “the party from whom it was requested,” and that the request is renewed. The provisions clearly contemplate that an applicant may not be the only appropriate “party” from whom, for example, medical necessity verification may most readily be obtained (e.g. a medical{**16 Misc 3d at 44} equipment provider who fills a prescription or, as here, an MRI facility acting upon an outside physician’s referral). Where verification is sought from a party other than the applicant, the applicant is entitled to be timely informed of the nature of the verification sought and from whom it is requested when, after an initial verification request remains unsatisfied, a follow-up request is necessary (see 11 NYCRR 65-3.6 [b]). As the claims of providers, such as MRI facilities, are subject to the medical necessity defense (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2d Dept 2007]) notwithstanding that they may neither be responsible for the medical necessity determination nor, in the case of a nonphysician provider, competent to make such a determination, permitting verification requests of nonapplicants upon proper notification to the applicants furthers the regulatory objective that verification proceed “as expeditiously as possible” and assists applicants to determine the propriety of verification demands, to monitor the insurer’s exercise of the verification procedures and to facilitate the timely production of the verification. Accordingly, because defendant established that the instant verification requests remain unsatisfied, the action is premature and was properly dismissed (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), entered October 5, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Fortune Med., P.C. v Allstate Ins. Co., ___ Misc 3d ___[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Sondra K. Pardes, J.), dated August 29, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting, inter alia, that the action was premature as defendant’s time to pay or deny the claim was tolled due to plaintiff’s failure to adequately respond to initial and follow-up verification requests. By order dated August 29, 2005, the lower court agreed and granted defendant’s motion. The instant appeal by plaintiff ensued.

After receipt of plaintiff’s claim which was accompanied by an incomplete assignment of benefits form, defendant requested verification in the form of a copy of a proper assignment. In response, plaintiff sent an incomplete assignment. As a result, defendant served a follow-up verification request seeking a completed assignment. Since plaintiff has yet to provide defendant with an assignment executed by plaintiff’s assignor which, as required by the assignment of benefits form contained within the regulations promulgated by the New York State Insurance Department, sets forth, among other things, the date of the accident, the assignor’s address and the date that the form was signed, the 30-day statutory period in which defendant has to pay or deny the claim has been tolled (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co. , 295 AD2d 583 [2002]; Doshi Diagnostic Imagining Servs. v Progressive Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51430[U] [App Term, 9th & 10th Jud Dists]). Consequently, [*2]defendant has established that payment of no-fault benefits is not overdue and that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

Plaintiff’s contention that the verification requests lacked specificity and failed to advise plaintiff what documentation it needed to supply to defendant is lacking in merit (see generally Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Indeed, the record establishes that plaintiff responded to the first verification request by re-submitting an assignment of benefits form which, as previously noted, was not properly completed. In addition, in its opposition papers, plaintiff’s attorney stated that the second verification request was unnecessary and was an attempt by defendant to harass plaintiff.

In light of the foregoing, the court below properly granted defendant’s motion for summary judgment dismissing the complaint (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d at 493).
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Anna R. Anzalone, J.), dated March 18, 2005. The order granted plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits for health care services provided to plaintiffs’ assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the
fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Defendant asserts, inter alia, that it timely denied plaintiffs’ claims based on fraudulent billing. However, the denial of claim forms are dated February 17, 2004 and indicate that plaintiffs’ twelve claims were received by defendant between October 13, 2003 and December 13, 2003. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof that it did so (see New York & Prebyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, defendant’s time to deny the claims was not tolled, the denials were untimely and defendant was [*2]precluded from raising most defenses as a result of its untimely denials (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense of fraudulent billing (see Presbyterian Hosp. in City of N.Y., 90 NY2d at 285; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, the order granting plaintiffs’ motion for summary judgment is affirmed.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

—[*1] Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé and Stephen P. Burke of counsel), for appellant.

Spiegel & Barbato, LLP, Bronx, N.Y. (Brian C. Mardon of counsel), for respondent William Tubis.

In a proceeding pursuant to CPLR article 75 to stay the arbitration of an uninsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated May 30, 2006, which, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs payable by the respondent William Tubis, the petition is granted, and the arbitration is permanently stayed.

In December 1997 the respondent William Tubis allegedly sustained injuries in an automobile accident with a vehicle insured by Legion Insurance Company (hereinafter Legion). On March 12, 1998 Tubis applied for no-fault benefits under his own insurance policy with the petitioner State Farm Mutual Automobile Insurance Company (hereinafter State Farm). He simultaneously requested uninsured/underinsured motorist benefits from State Farm, although any claim for uninsured motorist benefits was premature at that time since Tubis had no knowledge that the offending vehicle was uninsured (see Matter of State Farm Mut. Auto. Ins. Co. v Linero, 13 AD3d 546 [2004]).

Tubis thereafter commenced a personal injury action against Legion’s insured. However, by orders dated June 26, 2003 and July 25, 2003, the Commonwealth Court of the [*2]Commonwealth of Pennsylvania declared Legion insolvent, and appointed the Insurance Commissioner of the Commonwealth of Pennsylvania as Legion’s liquidator and receiver (see Koken v Legion Ins. Co., 831 A2d 1196 [Pa 2003], affd sub nom. Koken v Villanova Ins. Co., 583 Pa 400, 878 A2d 51 [2005]). By order dated August 22, 2003, the Supreme Court, New York County, placed Legion in liquidation in the state of New York and stayed all legal proceedings with respect to it.

On May 12, 2004 Tubis mailed State Farm a demand for arbitration of an uninsured motorist claim arising out of the 1997 accident, but the demand did not mention or refer to Legion’s liquidation. On June 15, 2004 State Farm commenced this proceeding to stay the arbitration, contending that the claim was time-barred because more than six years had elapsed since both the date of the accident and Tubis’s March 1998 claim for uninsured motorist benefits. In opposition, Tubis contended that his claim for uninsured motorist benefits was not untimely, since it actually did not accrue until July 2003, when Legion went into receivership in Pennsylvania, and the offending vehicle consequently became uninsured. In reply, State Farm asserted that it first became aware of the insolvency and liquidation of Legion from the papers submitted by Tubis in opposition to its petition, and disclaimed coverage on the ground that notice of the uninsured motorist claim based on Legion’s insolvency was not provided “[a]s soon as practicable” as required by the policy of insurance. State Farm subsequently was granted leave to supplement the petition to include, inter alia, the late notice as an additional basis for denial of the claim.

Following a framed-issue hearing, the Supreme Court denied the petition and dismissed the proceeding, finding that State Farm failed to timely disclaim on the ground that notice of the claim was not given “as soon as practicable,” since State Farm did not raise the issue of late notice by Tubis until it submitted its supplemental petition. We reverse.

Tubis clearly became aware of Legion’s insolvency, and of his corresponding right to submit a claim for uninsured motorist benefits in mid-to-late 2003, when orders were entered declaring Legion insolvent and appointing a receiver with respect to it. However, Tubis did not assert such a claim and a demand for arbitration until May 12, 2004. Tubis failed to comply with his obligation under the policy to provide notice of the claim “as soon as practicable,” his delay was substantial, and his demand for arbitration was untimely as a matter of law (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]; Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Hartford Ins. Co. of Midwest v Gamiel, 34 AD3d 244 [2006]; Matter of Interboro Mut. Indem. Ins. Co. v Brown, 300 AD2d 660 [2002]). Furthermore, State Farm was not made aware of Legion’s insolvency as the basis for the uninsured motorist benefits claim until Tubis filed papers in opposition to State Farm’s petition to stay arbitration. State Farm submitted reply papers promptly thereafter, which unequivocally disclaimed coverage on the ground that Tubis failed to provide timely notice under the policy, thereby satisfying its statutory obligation to timely disclaim (see Insurance Law § 3420 [d]; Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of New York Cent. Mut. Fire Ins. Co. v Gonzalez, 34 AD3d 816 [2006]; Matter of American Cas. Ins. Co. v Silverman, 271 AD2d 528 [2000]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]; Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448 [1991]). Accordingly, the Supreme Court erroneously concluded that State Farm failed to timely disclaim, and the petition to stay arbitration should have been granted. Mastro, J.P., Krausman, Florio and Balkin, JJ., concur.

—[*1] Quadrino & Schwartz, P.C., Garden City (Harold J. Levy of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered November 9, 2005, which granted defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint and denied plaintiffs’ cross motion for summary judgment and to amend the complaint, unanimously affirmed, without costs.

In their cross motion, plaintiffs never sought leave to amend the complaint to plead the essential elements of a cause of action to recover no-fault benefits for specific claims, or to replead the class action. Therefore, their argument for the right to replead is not properly before this Court. In any event, since the complaint and any proposed amendment were based on the same defective legal theory, the court did not err in dismissing the complaint for failure to state a cause of action and denying leave to amend because the “insufficiency or lack of merit is clear and free from doubt” (Noanjo Clothing v L & M Kids Fashion, 207 AD2d 436, 437 [1994]).

The court properly found that nurses’ reviews denying no-fault claims for lack of medical necessity were not per se invalid, since a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions provided that the reviewer’s training, observations and actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005], lv denied 4 NY3d 888 [2005]; Patil v Countrywide Ins. Co., 11 Misc3d 130[A], 2006 NY Slip Op 50306[U] [App Term 2006]).

We have considered plaintiffs’ remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Sullivan, Gonzalez and McGuire, JJ.