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 October 13, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because the affidavit of plaintiff’s corporate officer was of no probative value since, among other things, it did not set forth facts in admissible form. The court also granted defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

Inasmuch as 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 [*2]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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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 cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 12, 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 (Kathy J. King, J.), entered October 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity based upon two peer review reports. In the court below and on appeal, plaintiff argues, inter alia, that the peer review reports annexed to
defendant’s opposition papers were insufficient to establish an issue of fact because the peer review reports, purportedly executed in accordance with CPLR 2106, bore stamped facsimile signatures of the doctor who performed the peer reviews. We find that the peer review reports were not in admissible form since they only contained a stamped facsimile of the doctor’s signature which defendant failed to establish was placed thereon by the doctor (see CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632 [1971]; cf. General Construction Law § 46). In the absence of proof by defendant of a meritorious defense, plaintiff is entitled to summary judgment on both of its claims. Accordingly, the matter is remanded to the court below for a calculation of statutory interest and assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: March 12, 2007

[*1]

Civil Court of the City of New York, New York County, March 12, 2007

APPEARANCES OF COUNSEL

Votto, Cassata & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for defendant. Sanders, Grossman, Fass & Muhlstock, P.C., Mineola (Michael C. Rosenberger and Shayna Sacks of counsel), for plaintiff.

OPINION OF THE COURT

Shlomo S. Hagler, J.

Defendant New York Central Mutual Fire Insurance Company (NYCM) moves for an order “revising the attorney’s fees on plaintiff’s judgment in the above captioned matter, pursuant to 11 NYCRR 65-3.10 and 65-4.6.” Plaintiff Adam Marigliano, LMT, opposes the motion.

Background

Plaintiff medical provider sought to recover the sum of $1,593.67 in first-party no-fault benefits assigned to him by defendant’s insureds. Defendant denied the claims based on lack of medical necessity, overlapping services, failure to bill services in accordance with the no-fault fee schedule, and lack of causal relationships between the accidents and the injuries alleged. As a result of defendant’s denial and subsequent nonpayment of claims, plaintiff commenced this action in or about August 2005 by the filing and service of the summons and verified complaint. (Exhibit A to defendant’s motion.) Defendant interposed its answer in September 2005. (Id.) Thereafter, plaintiff filed his notice of trial. Defendant then moved for an order to vacate the notice of trial pursuant to 22 NYCRR 202.21 (e) and 208.17 (c), and compelling plaintiff, plaintiff’s assignor, and the treating physician to appear for depositions pursuant to CPLR 3124 and 3125. Plaintiff opposed the motion and cross-moved for an order granting him summary judgment pursuant to CPLR 3212 or, in the alternative, a protective order pursuant to CPLR 3103.

By decision/order dated July 25, 2006 (prior order), this court granted defendant’s motion to vacate the notice of trial and compel depositions of plaintiff and the treating physician only. This court also granted plaintiff partial summary judgment on his third, seventeenth, twenty-seventh and [*2]thirty-first causes of action, each for assignor Jose Contreras in the sum of $69.29 for a total of $277.16, “together with interest at the statutory rate of 2% per month pursuant to 11 NYCRR § 65-3.9 (a) and statutory attorney’s fees pursuant to 11 NYCRR § 65-4.6.” The parties were directed to settle judgment accordingly.^[FN1] (Exhibit B to defendant’s motion.)

Arguments

The gravamen of defendant’s motion is that plaintiff is only entitled to a single attorney’s fee award for the total or aggregate of all four bills and causes of action plaintiff brought on behalf of the same assignor, Jose Contreras. In sharp contrast, plaintiff argues that he is entitled to a separate attorney’s fee award for each of the four claims. In other words, plaintiff seeks payment of attorney’s fees on a “per claim” basis.

Attorney’s Fees

The current statutory authority governing first-party no-fault benefits is codified in the “Comprehensive Motor Vehicle Insurance Reparations Act” under article 51 of the Insurance Law (L 1984, chs 367, 805). This legislation is commonly referred to as the “No-Fault Law” because it provides a plan for compensation of victims of motor vehicle accidents for economic loss without regard to fault or negligence. (Montgomery v Daniels, 38 NY2d 41 [1975]; Oberly v Bangs Ambulance, 96 NY2d 295 [2001].) The general framework for payment of first-party benefits, including attorney’s fees, derives from Insurance Law § 5106 (a). It states as follows:

“(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” (Emphasis added.)

Regulation 68, 11 NYCRR Part 65

The Insurance Department is the governmental agency responsible for the administration of article 51 of the Insurance Law. In this capacity, the Superintendent of Insurance, interpreting Insurance Law § 5106, promulgated Regulation 68 and codified it under 11 NYCRR part 65.

Four sections of these regulations—sections 65-4.6, 65-3.10, 65-3.19 and 65-4.10 (j)—form the blueprint or outline for payment of attorney’s fees in first-party benefit actions. However, section 65-4.6 is the only section which applies to awarding attorney’s fees in a court action where the claimant is the prevailing party. The other sections are inapplicable to court actions as they refer to late payment of claims, offsets, arbitration and master arbitration awards. [*3]

Section 65-4.6 sets forth the limitations on attorney’s fees pursuant to Insurance Law § 5106 (a). The relevant portions of this section dealing with court actions are subdivisions (a), (c) and (e) as follows:

“(a) If an arbitration was initiated or a court action was commenced by an attorney on behalf of an applicant and the claim or portion thereof was not denied or overdue at the time the arbitration proceeding was initiated or the action was commenced, no attorney’s fees shall be granted. . . .

“(c) Except as provided in subdivisions (a) and (b) of this section, the minimum attorney’s fee payable pursuant to this subpart shall be $60. . . .

“(e) For all other disputes subject to arbitration, subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.”

Nomenclature

The dispute between the parties partially stems from the imprecise nomenclature of terms that health providers, insurers and even courts utilize interchangeably in first-party benefit actions. This is primarily so because the Insurance Department’s regulations interpreting Insurance Law § 5106 (a) do not contain a section defining integral terms. They often misuse the common terms of “bill,” “claim,” and “cause of action.”

A bill should be defined as an account of the provider’s request for payment for treatment/services rendered and/or supplies provided. A “claim” under article 51 of the Insurance Law should be referred to as a “proof of claim”^[FN2] which is submitted as a “Verification of Treatment by Attending Physician or Other Provider of Health Service” (form NF-3), or less commonly, “Verification of Hospital Treatment” (form NF-4), or “Hospital Facility” (form NF-5) or their functional equivalents. Significantly, the forms provide the insurer with the name of the policyholder, name and address of the provider, policy number, date of accident, date of health care service, place of service, description of various treatment/service rendered and charges billed. Each “proof of claim” form may encompass a bill for a single service or treatment rendered or multiple bills for several treatments and/or services rendered on one or more dates.

The legal definition of cause of action is “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” (Black’s Law Dictionary 235 [8th ed 2004].) [*4]

Payment of Attorney’s Fees

Claim Versus Cause of Action

One of the latest issues arising in the thicket of first-party no-fault regulations is whether attorney’s fees are awarded based on each “proof of claim” as defined above or computed through the aggregate of all bills, proofs of claim, and causes of action for the same assignor.

A majority of the trial courts which have dealt with this issue have awarded attorney’s fees based on each proof of claim. (See, e.g., Willis Acupuncture, P.C. v Government Empls. Ins. Co., 6 Misc 3d 1002[A], 2004 NY Slip Op 51702[U] [Civ Ct, Kings County 2004, Thomas, J.]; A.M. Med. Servs. P.C. v New York Cent. Mut. Fire Ins. Co., NYLJ, July 24, 2006, at 25, col 1 [Civ Ct, Queens County, Raffaele, J.]; Alpha Chiropractic P.C. v State Farm Mut. Auto Ins. Co., 14 Misc 3d 673 [Civ Ct, Queens County 2006, Siegal, J.]; Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co., 15 Misc 3d 576 [Civ Ct, Queens County 2007, Lebedeff, J.].)

On the other hand, an informal opinion letter issued by the Office of the General Counsel of the Insurance Department on October 8, 2003 (exhibit C to defendant’s motion), and relied upon by one trial court in Marigliano v New York Cent. Mut. Fire Ins. Co. (13 Misc 3d 1079 [Civ Ct, Richmond County 2006, Sweeney, J.]), endorses the awarding of attorney’s fees based on the aggregate of all bills, proofs of claim, and causes of action for the same assignor.

While there is a plethora of cases in the Second Department on this complex issue, there do not appear to be any reported decisions in the trial and appellate levels of the First Department. Incredibly, this case appears to be one of first impression in the First Department even though the No-Fault Law was enacted more than 30 years ago. A proper review of this issue requires analysis of the legislative intent, statutory construction and historical perspective of Insurance Law § 5106 (a).

Legislative Intent

The noble and stated intent of the No-Fault Law was to create a new and improved insurance reparations system “which . . . assures that every auto accident victim will be compensated for substantially all of his [or her] economic loss, promptly and without regard to fault; [and] will eliminate the vast majority of auto accident negligence suits, thereby freeing our courts for more important tasks.” (Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Session Laws of NY, at 2335 [emphasis added]; Matter of Granger v Urda, 44 NY2d 91 [1978].)

The Court of Appeals also noted that the avowed purpose of the No-Fault Law was to “guarantee” “prompt and full compensation for economic losses . . . without the necessity of recourse to the courts[;] the Legislature acted reasonably to eliminate much of the wasted expenditures of premium dollars on expenses extraneous to treatment of injury.” (Montgomery v Daniels, 38 NY2d 41, 55 [1975] [emphasis added]; Insurance Law former § 675 [1].)

A lynchpin of the No-Fault Law was the prompt payment of victims’ claims under the so-called “30-day rule” as first-party benefits were “overdue if not paid within thirty days after the [*5]claimant supplies proof of the fact and the amount of loss sustained.” (Montgomery, 38 NY2d at 47, quoting Insurance Law former § 675 [1].)

“The Legislature provided that where an unpaid claim is overdue, as here, a claimant shall recover as part of his award his attorney’s reasonable fee (Insurance Law, § 675, subd 1 [now Insurance Law § 5106 (a)]). It is clear that the Legislature intended that an insurance company not be able to frustrate the operation of the statute [No-Fault Law] by throwing legal obstacles in the path of recovery.” (Matter of Simmons [Government Empls. Ins. Co.], 59 AD2d 468, 473 [2d Dept 1977].)

Thus, the Legislature intended to mandate the insurer’s strict compliance with the “30-day rule” to avoid the claimant resorting to judicial intervention by imposing one of the highest statutory interest rates payable at two percent per month as well as payment of attorney’s fees.

Statutory Construction

When construing a statute, a court “should consider the mischief sought to be remedied . . . and . . . should construe the act in question so as to suppress the evil and advance the remedy.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 95; see also, T.D. v New York State Off. of Mental Health, 228 AD2d 95, 106 [1st Dept 1996]; Lincoln First Bank of Rochester v Rupert, 60 AD2d 193, 197 [4th Dept 1977].)

With this principle in mind, a fair reading of Insurance Law § 5106 (a) provides for payment of attorney’s fees on a “per claim” basis. The statute requires a claimant to supply the insurer with the “proof of the fact and amount of loss sustained.” This is tantamount to the claimant submitting to the insurer a “proof of claim” such as the NF-3, NF-4 or NF-5 forms or their functional equivalents. The statute further states that “[i]f proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied.” This infers that multiple treatments and services may be consolidated into a single “proof of claim” which is subject to the “30-day rule.” The triggering event which results in payment of interest and attorney’s fees is the insurer’s failure to pay a “valid claim or portion” thereof within 30 days. In other words, there is a cause and effect relationship. The “cause” is the insurer’s failure to timely pay any portion of the substantiated “proof of claim” and the “effect” is the insurer’s required payment of the claim with interest thereon and attorney’s fees. Simply stated, at the time any portion of the “proof of claim” becomes overdue, the insurer is liable to pay attorney’s fees for each overdue item.

As stated above, the legislative intent of the No-Fault Law was to promptly and fully compensate auto accident victims without judicial intervention. When an auto accident victim is forced to resort to litigation due to nonpayment of benefits, it frustrates the legislative intent to remedy “the mischief” and advance the goal of prompt and full compensation and to discourage litigation. Therefore, the payment of the victim’s attorney’s fees should be awarded for each “proof of claim” that becomes overdue.

Historical Perspective

There are at least three Second Department appellate decisions which have held that a claimant is entitled to recover statutory attorney’s fees on a “per claim” basis. (Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [2d Dept 1994]; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [2d Dept 1994]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [2d Dept [*6]1995].)

What makes this issue perplexing is the brevity of each of the above appellate decisions which neither explained nor defined its usage of the term “claim.” Even the landmark case of Smithtown Gen. Hosp. v State Farm Mut. Auto Ins. Co. (supra) has been cited by both parties in support of their respective positions. Claimants assert the plain meaning of the term “claim” as actually a “proof of claim” (i.e., NF-3, NF-4, or NF-5). Insurers opine that the Smithtown court’s meaning of “claim” is really referring to 21 different causes of action and assignors. In other words, each cause of action for a different assignor constitutes a “claim.” A review of the Smithtown complaint and the briefs submitted to the Appellate Division indicates that the 21 claims at issue were actually 21 causes of action for 21 different assignors. Unfortunately, there were no two proofs of claim submitted for any one assignor. Therefore, no definitive determination of the issue may reasonably be adduced from the Smithtown holding.

However, there is an earlier Second Department decision in Mid-Island Hosp. v Empire Mut. Ins. Co. (120 AD2d 652 [2d Dept 1986]) which should end the controversy. In Mid-Island Hosp., plaintiffs served a complaint asserting five causes of action for nonpayment of first-party no-fault benefits. The first and second causes of action were brought by one of the plaintiffs, Mid-Island Hospital, on behalf of the same assignor, Mildred Koegel, for separate claims of $2,532 and $422. Plaintiffs argued they were entitled to additional “fees on fees” for prosecuting the action. The insurer took the position that plaintiffs were only entitled to payment of the then statutory minimum payment of $50 per claim for each cause of action and no “fees on fees” were authorized under the applicable statute. The Appellate Division affirmed the trial court’s finding that “plaintiffs were entitled to attorney’s fees of $50 on each of their five causes of action, as each claim was settled prior to commencement of the instant action.” (Id. at 653.) Significantly, the Appellate Division held that plaintiff Mid-Island Hospital was entitled to attorney’s fees of $50 for each of the two claims that it brought on behalf of Ms. Koegel. The Mid-Island Hosp. holding convincingly demonstrates that plaintiffs are entitled to be compensated for attorney’s fees for each proof of claim brought on behalf of the same assignor.

Insurance Department’s Opinion Letter of October 8, 2003

The Insurance Department’s opinion letter of October 8, 2003 is informal and not binding on any court. (State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 506 [2d Cir 2004]; Matter of Park Radiology v Allstate Ins. Co., 2 Misc 3d 621, 625 n 2 [Civ Ct, Richmond County 2003, Vitaliano, J.].)

Courts may defer to the government agency charged with the responsibility for administration of the particular statute “[w]here the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). However, where

“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent [as in this case], there is little basis to rely on any special competence or expertise of the administrative agency [the Insurance Department] and its interpretative regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not [*7]be accorded any weight.” (Id.)

Similarly, where the Insurance Department’s interpretations of Insurance Law § 5106 (a) and its regulations are irrational and unreasonable, they will not be upheld. (Id.)

In this case, the Insurance Department’s opinion letter of October 8, 2003 limits the claimant’s recovery to the “total amount of individual bills disputed . . . regardless of whether one bill or multiple bills are presented as part of a total claim for benefits.” (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003].) This is an irrational and unreasonable interpretation of the statutory construction of Insurance Law § 5106 (a), runs contrary to the legislative intent of providing claimants with prompt and full compensation, and ignores the historical perspective of the courts which have, at least, awarded the minimum attorney’s fees for each disputed claim which is resolved in favor of the claimant.

Accordingly, this court rejects the Insurance Department’s informal and nonbinding opinion letter of October 8, 2003, for reasons similar to those of several trial courts that have done so in the past. (Alpha Chiropractic P.C. v State Farm Mut. Auto Ins. Co., supra; Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co., supra.)

Conclusion

Defendant’s motion to revise the attorney’s fees on the plaintiff’s judgment is denied as defendant failed to provide a copy of said proposed judgment and plaintiff is entitled to a minimum attorney’s fee of $60 for each of the four “claims” he asserted on behalf of his assignor, Jose Contreras. The parties are directed to settle the judgment accordingly.

Footnotes

Footnote 1: Neither party settled the judgment. Moreover, defendant failed to attach a copy of the proposed judgment that it seeks to revise.

Footnote 2: A “proof of claim” would be more accurate and avoid confusion because a “claim” can also be loosely defined as a “cause of action.” (Black’s Law Dictionary 264 [8th ed 2004].)

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 (Valerie Braithwaite Nelson, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial.

Appeal from so much of the order as granted defendant’s cross motion for summary judgment to the extent of precluding plaintiff from offering any evidence at trial dismissed.

Order, insofar as reviewed, 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 based upon, among other things, plaintiff’s failure to comply with a so-ordered stipulation. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. The court below denied plaintiff’s motion on the ground that plaintiff did not make a prima facie showing due to the absence of an affidavit of merit executed by a person with personal knowledge of the facts. The court also granted defendant’s cross motion to the extent of precluding plaintiff from offering any evidence at trial. The instant appeal by plaintiff ensued.

Inasmuch as the affirmation of plaintiff’s counsel was of no probative value because it did not assert a basis of counsel’s personal knowledge of the facts and lay a sufficient foundation for [*2]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 CPLR 4518; Zuckerman v City of New York, 49 NY2d 557 [1980]; Feratovic v Lun Wah, Inc., 284 AD2d 368 [2001]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists]). Although plaintiff subsequently served an affidavit executed by its corporate officer, even if said affidavit was sufficient to demonstrate that the documents annexed to plaintiff’s papers were admissible as business records, plaintiff was not entitled to summary judgment because plaintiff cannot establish its entitlement to judgment as a matter of law by submitting as part of its reply papers sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]).

Since plaintiff failed to submit written opposition to the branch of defendant’s cross motion which was based upon plaintiff’s failure to comply with the so-ordered stipulation which required plaintiff to provide discovery, the branch of the order which granted defendant’s cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576
[2004]; Maino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 8, 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, Queens County (Edgar G. Walker, J.), entered March 18, 2005. The order granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days, and denied plaintiff’s cross motion for summary judgment and awarded defendant $50 costs.

Appeal from so much of the order as granted defendant’s motion to strike plaintiff’s complaint unless plaintiff served a bill of particulars and responded to discovery demands within 45 days dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based upon plaintiff’s failure to provide discovery and plaintiff cross-moved for summary judgment. Plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. However, plaintiff did not address defendant’s motion to dismiss. The court below denied plaintiff’s cross motion, holding, inter alia, that plaintiff did not make a prima facie showing because it failed to lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. The court also granted [*2]defendant’s motion to the extent of dismissing the complaint unless plaintiff provided a bill of particulars and responded to outstanding discovery demands within 45 days after service of the order with notice of entry. The instant appeal by plaintiff ensued.

Inasmuch as 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see 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 cross motion for summary judgment was properly denied.

Since plaintiff failed to submit written opposition to defendant’s motion to strike the complaint, that branch of the order which granted defendant’s motion to the extent of requiring plaintiff to serve a bill of particulars and respond to defendant’s disclosure demands was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s motion is dismissed.

Plaintiff’s remaining contention lacks merit.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: March 8, 2007

[*1]

Civil Court of the City of New York, Kings County, March 7, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City, for defendant. Gary Tsirelman, P.C., Brooklyn, for plaintiff.

OPINION OF THE COURT

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5106 (a) of the Insurance Law and Regulations of the New York State Insurance Department (11 NYCRR 65-1.1 et seq.), for medical services rendered.

Defendant moves for an order granting summary judgment in favor of defendant based on plaintiff’s attempt to relitigate a claim which was previously dismissed by the court, and imposition of sanctions against plaintiff’s counsel for having engaged in frivolous conduct.

Plaintiff opposes the motion on the grounds that the prior action was dismissed due to plaintiff’s failure to comply with discovery demands.

The plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5106 (a) of the Insurance Law and the regulations, in the amount of $800 for acupuncture treatment allegedly rendered to the assignor, Cindy Hall, as a result of an automobile accident which occurred on July 27, 2002. Prior to this action, the plaintiff commenced an action against defendant State Farm on behalf of the same assignor, Cindy Hall, for the same services as indicated in this action.

In the prior action, after service of the summons and complaint, issue was joined and discovery demands were made on or about January 30, 2003. On May 10, 2004, the plaintiff served a notice of trial. The defendant moved to strike the notice of trial on the grounds that discovery had not been completed. Thereafter on June 28, 2004, the defendant served a supplemental demand for discovery. On June 29, 2004, the parties appeared before the Honorable Ellen Spodek, and the attorneys entered into a stipulation which marked the case off the trial calendar, and required plaintiff to provide all discovery on or before July 29, 2004. Due to plaintiff’s failure to comply with the discovery demands as stipulated to, the defendant moved for [*2]an order to dismiss plaintiff’s complaint for failure to comply. On May 10, 2005, the parties appeared before the Honorable Robin Garson. After oral argument on the motion, the court granted defendant’s order to show cause, and dismissed the action due to plaintiff’s failure to comply with the stipulation requiring plaintiff to comply with all outstanding discovery.

Thereafter, the plaintiff commenced the action which is the subject of defendant’s motion to dismiss, pursuant to CPLR 3212. Defendant argues that the plaintiff is attempting to relitigate the same bills which were the subject of the previous lawsuit. Defendant further argues that the bills in question do not involve different dates of service than the previous bills submitted under the prior action, and therefore plaintiff is estopped from relitigating the bills in issue due to the dismissal of plaintiff’s prior action.

In opposition to defendant’s motion to dismiss, the plaintiff argues that pursuant to CPLR 205, the plaintiff can recommence the action within six months after termination. Plaintiff argues that Judge Garson’s dismissal of the prior case limited her holding to the discovery stipulation only.

After careful consideration of the moving papers, supporting documents and opposition thereto, the court finds as follows:

The plaintiff timely commenced the instant action against the defendant seeking the same relief that it sought in the prior action.

“CPLR 205. Termination of action” states as follows:

“(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

However, this court disagrees with plaintiff’s argument that it is not precluded from commencing a new action under a new index number. The complaint was dismissed after oral argument of defendant’s motion to dismiss, on the grounds that the plaintiff failed to comply with discovery demands as per a stipulation signed by both attorneys. Plaintiff’s attempt to now argue that the discovery demands were unduly cumbersome and burdensome, and therefore plaintiff was unable to comply with said demands is too late. The arguments, as conceded to by plaintiff [*3]should have been made before the judge hearing oral argument on the motion to dismiss. Furthermore, plaintiff could have moved to reargue the motion and/or appeal the court’s decision.

In Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. (Habiterra Assoc.) (5 NY3d 514, 520 [2005]), the Court of Appeals held that the “neglect to prosecute” exception in CPLR 205 (a) applies not only where the dismissal of the prior action is for “[w]ant of prosecution pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal” (internal quotation marks omitted). The plaintiff failed to comply with discovery demands, and after repeated demands for the outstanding discovery, as well as failure to comply with a stipulation, defendant moved to dismiss the complaint, which was granted by the court.

The purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205 (a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road. (See, Andrea v Arnone, Hedin, Casker, Kennedy & Drake, supra; Carven Assoc. v American Home Assur. Corp., 84 NY2d 927 [1994]; Flans v Federal Ins. Co., 43 NY2d 881 [1978].)

Accordingly, defendant’s motion to dismiss is hereby granted; the complaint is dismissed in its entirety, without an imposition of sanctions.

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 (Timothy J. Dufficy, J.), entered August 16, 2005, deemed an appeal from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2005 order granting plaintiff summary judgment, awarded plaintiff the principal sum of $4,289.15.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted the motion and the instant appeal by defendant 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 Deerbrook Ins. Co., Misc 3d [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., Misc 3d , 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is reversed, the [*2]order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion is denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: March 5, 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 (Eileen Nadelson, J.), entered September 26, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted defendant partial summary judgment on its cross motion.

Order, insofar as appealed from, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided its assignor, defendant established that in response to plaintiff’s claims for $627.50, $540.80, $612.39, and $338, it issued timely initial and follow-up verification requests, for assignor’s social security number, all of which remain unsatisfied. Defendant’s affidavits set forth the basis of the affiants’ knowledge of the preparation and issuance of the verification request letters and a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]). As an assignor’s social security number is a proper subject of verification (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] [App Term, 2d & 11th Jud Dists]; see generally Cassano v Carb, 436 F3d 74 [2d Cir 2006]), the court below properly denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment as to those claims under which it cross-moved for relief, and dismissed those claims as premature (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term, 2d & 11th Jud Dists 2005]). With respect to the remaining [*2]claim, for $311.53, a triable issue exists as to whether defendant paid for said treatment as part of a prior claim submitted by plaintiff.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 5, 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 (Donald S. Kurtz, J.), entered May 25, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $2,805 and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raised no issue in the court below or on appeal with respect thereto.

In opposition to the motion, defendant’s attorney made the conclusory allegation, without personal knowledge of the facts, that defendant had sent several requests for examinations under oath to the insured and that the insured failed to appear. Since defendant failed to properly establish said mailings (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish that the 30-day prescribed period in which to deny the claims was tolled (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant further opposed plaintiff’s motion asserting that the alleged injuries do not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). However, the affidavit by an investigator for the special investigation unit of defendant failed to allege facts either upon personal knowledge or based upon evidence in admissible form with sufficient particularity to establish a “founded belief that the alleged [*2]injur[ies] do[ ] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co, 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 5, 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 (Dolores L. Waltrous, J.), entered January 6, 2006, deemed an appeal from the judgment entered on January 30, 2006 (see Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the January 6, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the total sum of $10,088.84.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed, claiming, inter alia, that plaintiff’s assignors failed to appear for scheduled independent medical examinations (IMEs), and that there was an issue of fact as to whether the alleged injuries were caused by an insured incident. The court below granted plaintiff’s motion, and a judgment was subsequently entered. On appeal, defendant reiterates the arguments which it made in the court below, i.e., that plaintiff’s assignors, by failing to appear for scheduled IMEs, violated a condition precedent to coverage under the policy, and that defendant had presented a triable issue of fact regarding fraud sufficient to defeat plaintiff’s motion.

The claims at issue were denied by defendant based upon plaintiff’s assignors’ failure to attend scheduled IMEs. Defendant, in opposition to plaintiff’s motion for summary judgment, submitted affidavits from a claims representative and an investigator from its Special Investigative Unit. Neither affiant, however, demonstrated personal knowledge of the mailing of defendant’s verification requests or described a standard office mailing procedure giving rise to a [*2]presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Ocean Diagnostic Imaging P.C. v New York Central Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Thus, defendant failed to demonstrate by competent evidence that it mailed the IME requests, or any other documents which would have tolled the 30-day claim determination period (see Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). We further note that, in any event, defendant submitted no evidence from anyone with personal knowledge of the nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

While defendant also claimed that plaintiff’s assignors were engaged in fraudulent conduct by virtue of their having failed to attend scheduled IMEs as well as by having made “material misrepresentation[s]” in the presentation of the claims, its submissions were insufficient to establish a defense 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 195, 199 [1997]). The investigatory reports upon which defendant’s investigator relied were unsworn, and the statements in the affidavit of defendant’s investigator were conclusory (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51334[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.,10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). In view of the foregoing, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs, in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 2, 2007