[*1]

Supreme Court, Appellate Term, Second Department, February 27, 2007

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Anthony J. Centone, P.C., White Plains, for respondent.

{**15 Misc 3d at 34} OPINION OF THE COURT

Memorandum.

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

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 of counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

As plaintiff correctly asserted in the court below and on appeal, notwithstanding the fact that the denial of claim forms were timely on their face, defendant failed to establish that any of the forms were timely mailed within the prescribed 30-day period (11 NYCRR 65-3.8 [c]). Defendant’s opposition papers lacked any documentary proof or an affidavit of a representative of defendant which would sufficiently demonstrate either actual mailing of the denials or give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, defendant was precluded from raising its proffered defense of lack of medical necessity as to the three claims in question (see e.g. Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff [*2]was therefore entitled to summary judgment.

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston Patterson, J. (dissenting and voting to affirm the order in the following memorandum). I disagree with the majority opinion and would vote to affirm the order on the ground that plaintiff failed to establish its entitlement to judgment as a{**15 Misc 3d at 35} matter of law. In support of its motion, plaintiff attaches a vague, nonspecific affidavit of its corporate officer Charles DeMarco. Nothing in the affidavit identifies what services were rendered, when they were rendered, the amount owed, and the dates the claims were mailed. Instead, the affidavit alleges that the “attached are my corporate business records for billing and are true copies of the no-fault claim.” In the absence of any foundation for the admission of these records, I cannot agree that plaintiff sustained its burden of establishing a prima facie case (see Mega Supply & Billing, Inc. v Progressive Cas. Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50023[U] [App Term, 2d & 11th Jud Dists 2007]).

The fact that defendant raised no issue below or on appeal with respect to plaintiff’s prima facie showing is irrelevant. A movant’s failure to establish a prima facie case mandates denial of a summary judgment motion without regard for the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Having failed to sustain its burden of making a prima facie showing, plaintiff is not entitled to judgment as a matter of law.

Accordingly, I would vote to affirm the order below.

Pesce, P.J., and Belen, J., concur; Weston Patterson, J., dissents in a separate memorandum.

—[*1] Moore & Associates (Carol R. Finocchio, New York, N.Y., of counsel), for appellant.

In an action, inter alia, to recover no-fault medical payments, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated October 3, 2005, which affirmed so much of an order of the Civil Court, Kings County (Spodek, J.), entered September 1, 2004, as denied that branch of its cross motion which was for summary judgment dismissing the complaint as time-barred.

Ordered that the order dated October 3, 2005 is affirmed, with costs.

The plaintiff is a chiropractor who provided treatment to three individuals injured in a 1997 automobile accident. Prior to receiving treatment, the patients assigned the plaintiff their right to recover first-party medical benefits from the defendant insurance company. In the fall of 1997 the defendant paid a portion of the plaintiff’s bills, but denied full payment on the ground that the amounts billed were in excess of the fee schedule and reasonable and customary charges. More than five years later, the plaintiff commenced this action seeking the balance due on the subject bills. The defendant subsequently cross-moved, inter alia, for summary judgment dismissing the complaint contending that the action was time-barred by the three-year statute of limitations which applies to obligations created by statute (see CPLR 214 [2]). The Civil Court, inter alia, denied that branch of the cross motion, finding that the action was governed by the six-year statute of limitations applicable to contractual obligations (see CPLR 213 [2]), and the Appellate Term affirmed that portion of the order. We agree that the six-year statute of limitations applies to this action, and thus the Civil Court properly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint as time-barred. [*2]

We begin our analysis by considering the language of the relevant statutory provisions. CPLR 213 (2) provides a six-year statute of limitations where the plaintiff’s action is one based “upon a contractual obligation or liability, express or implied . . . ” By contrast, CPLR 214 (2) provides a three-year statute of limitations where the action is “to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215″ (emphasis added). Thus, as a matter of strict statutory interpretation, where the plaintiff’s action is based upon both a “contractual obligation or liability ” and upon a “liability, penalty or forfeiture created or imposed by statute,” the longer, six-year statute of limitations, as provided in CPLR 213 (2), is applied to the exclusion of the three-year statute of limitations provided in CPLR 214 (2).

Here, the plaintiff’s action is premised on the terms of a contract for automobile liability insurance. Although the relevant terms of such contracts are mandated by various provisions of the Insurance Law, we find that the six-year statute of limitations provided in CPLR 213 (2) applies to the exclusion of the three-year statute of limitations provided in CPLR 214 (2). Our statutory interpretation is confirmed by case law. In Gurnee v Aetna Life & Cas. Co. (55 NY2d 184, 193 [1982], cert denied 459 US 837 [1982]), the Court of Appeals recognized, albeit in dicta, that the six-year statute of limitations, as provided in CPLR 213, applied to a cause of action based upon wrongfully withheld first-party benefits. This Court has followed that rule in the past on the theory that a no-fault claimant’s right (or that of his or her assignee) to recover first-party benefits derives primarily from the terms of the relevant contract of insurance (see Hanover Ins. Co. v Fleisher, 96 AD2d 881, 882 [1983]; Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680 [1982]; see also Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj, 9 AD3d 833, 835 [2004] [4th Dept, Green and Scudder, JJ., dissenting]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; Micha v Merchants Mut. Ins. Co., 94 AD2d 835 [1983]). These cases demonstrate that the inclusion of terms in an insurance contract, which might be mandated by various statutes or regulations, does not necessarily alter the fundamentally contractual nature of the dispute between the insured (or his or her assignee), on the one hand, and his or her “no-fault” insurer, on the other hand.

We reject the defendant’s contention that the Court of Appeals’ decision in Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996]) (hereinafter MVAIC v Aetna) requires us to apply the three-year limitations period set forth in CPLR 214 (2). MVAIC v Aetna is distinguishable from the present case because it did not involve a claim asserted by an insured (or his or her assignee) directly against his or her no-fault insurer. In that case, Aetna denied coverage under an automobile liability policy, claiming that the policy had been cancelled prior to the subject accident. After paying no-fault benefits to the claimants, the Motor Vehicle Accident Indemnification Corporation (MVAIC) sought to recoup those payments from Aetna by demanding arbitration pursuant to Insurance Law § 5105 (a) and (b). In seeking recoupment, MVAIC asserted a right of action against Aetna that, in addition to being unknown at common law, could not properly be viewed as arising out of any contract. Indeed, Aetna and MVAIC had no contract between themselves. It was under these circumstances that the Court of Appeals held that MVAIC’s claim was governed by the three-year statute of limitations provided in CPLR 214 (2) (see 89 NY2d at 221).

We also reject the defendant’s claim that MVAIC v Aetna can be viewed as having overruled Gurnee v Aetna Life & Cas. Co. (supra), and the cases which have relied upon Gurnee in applying a six-year limitations period to claims asserted by an insured against a carrier for no-fault benefits. Notably, in MVAIC v Aetna, the Court of Appeals did not expressly overrule Gurnee although that case was brought to the Court’s attention by counsel. Furthermore, in MVAIC v Aetna the Court of Appeals did not implicitly or explicitly overrule Micha v Merchants Mut. Ins. [*3]Co. (supra), and Hanover Ins. Co. v Fleisher (supra).

The defendant’s reliance upon Aetna Life & Cas. Co. v Nelson (67 NY2d 169 [1986]) (hereinafter Aetna Life v Nelson), is also misplaced. In that case, the injured claimants had successfully recovered first-party benefits from their insurance carrier, Aetna Life, based on injuries suffered in a one-car accident. They later obtained a judgment against the State of New York in the Court of Claims, a judgment that was in part duplicative of the first-party benefits awarded to them by Aetna Life. Accordingly, Aetna Life sought to enforce a lien on that judgment in order to recoup its payment of first-party benefits, and also in order to obviate what would otherwise be a “double recovery” by the no-fault claimants. In arguing that its claim was not time-barred, Aetna Life relied upon the “residual” six-year statute of limitations set forth in CPLR 213 (1), and did not argue that its claim sounded in contract. In finding that the applicable statute of limitations was the three-year term provided in CPLR 214 (2), the Court of Appeals noted that the right to recoupment being pursued by Aetna Life was “made available to [it] pursuant to Insurance Law § 673 (2) [currently section 5104 (b)]” (67 NY2d at 175).

In contrast to MVAIC v Aetna and Aetna Life v Nelson, the instant case involves a dispute between the defendant, an insurer, and the plaintiff, an insured’s assignee, regarding the recovery of no-fault benefits under the terms of an insurance policy. Although the terms of the insurance policy may be mandated by various provisions of the Insurance Law, this does not alter the fact that the dispute is fundamentally contractual in nature and not a creature of statute. Accordingly, the six-year statute of limitations set forth in CPLR 213 (2) applies to this action, and the Appellate Term properly affirmed so much of the Civil Court’s order denying that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint as time-barred (see Gurnee v Aetna Life & Cas. Co., supra). Rivera, J.P., Krausman, Goldstein and Lunn, 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, Kings County (Ellen M. Spodek, J.), entered April 1, 2005. The order denied the petition to vacate the master arbitrator’s award.

Order 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 Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). 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]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 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 (Arlene Bluth, J.), entered November 28, 2005. The order granted a motion to dismiss the proceeding for improper service of process.

Order affirmed without costs.

R.J. Professional Acupuncturist, P.C. (R.J.) commenced the instant special proceeding to vacate a master arbitrator’s award, which affirmed the arbitrator’s award denying R.J.’s claim for assigned first-party no-fault benefits in the sum of $1,549.26. The insurer, Allstate Insurance Company (Allstate), moved to dismiss the proceeding, based on R.J.’s failure to serve a notice of petition and petition in accordance with CPLR 402 and 403. R.J. contends that a petition was not required in this case because it was appealing as a remedy after losing in arbitration and, thus, was continuing, and not commencing, an action. The court below granted Allstate’s motion to dismiss for failure to properly serve a notice of petition and petition in the manner provided for in CPLR 403 (c).

R.J. commenced the instant proceeding by serving the notice of petition served on Allstate’s attorney by regular mail. Pursuant to CPLR 403 (c), a notice of petition shall be served in the same manner as a summons in an action (Matter of Star Boxing, Inc. v DaimlerChrysler Motors Corp., 17 AD3d 372 [2005]). In view of the foregoing, the motion to dismiss the proceeding was properly granted on the ground of improper service (see CPLR 403 [c]).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 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 (Delores J. Thomas, J.), entered January 24, 2006. 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, in effect, that said affidavit was
vague, and plaintiff failed to establish a prima facie case. The court below denied plaintiff’s motion for summary judgment based on plaintiff’s failure to make out a prima facie case. 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 (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]). In view of the foregoing, we do not reach the parties’ remaining contentions.

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 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 (Milagros A. Matos, J.), entered June 28, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a health care 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 someone who was either an “employee/shareholder” or an “employee of the company providing billing services for plaintiff,” and various documents annexed thereto. The affidavit stated in conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition to the motion, defendant argued, inter alia, that the affidavit 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.

Inasmuch as the affidavit submitted in support of plaintiff’s motion was insufficient to establish that the affiant 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 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]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Belen, JJ., concur. [*2]
Decision Date: February 26, 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 (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 moved for summary judgment. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because 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 to
establish that the documents annexed to plaintiff’s moving papers were admissible as business records. 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 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 motion for summary judgment was properly denied.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 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 October 13, 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’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the documents annexed [*2]to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists, Jan. 12, 2007]; 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.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 26, 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 28, 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 to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit as “the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers indicate that defendant mailed assignor a request that she appear for pre-claim independent medical examinations (IMEs), that assignor received the scheduling notice and failed to appear, that defendant timely sent (11 NYCRR 65-3.6 [b]), and assignor received, a follow-up IME scheduling notice, and that assignor again failed to appear. This proof sufficed to warrant the motion’s denial (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: February 26, 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 (Robin S. Garson, J.), entered May 27, 2005. The order denied the petition to vacate a master arbitrator’s award.

Order 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 claim for first-party no-fault benefits (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). 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]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007