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 (Bernard J. Graham, J.), entered August 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were timely mailed.

Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see 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]). Accordingly, the order is affirmed.

Weston Patterson, J.P., 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, 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 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. After defendant opposed the motion, the court denied plaintiff’s motion, holding that plaintiff’s moving papers failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

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 Bath Med. Supply, Inc. v 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]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 19, 2005. The order denied defendant’s motion to vacate the default judgment and to compel plaintiff to accept its late answer.

Order modified by granting defendant’s motion to the extent of vacating the default judgment entered against it; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served an untimely answer and that thereafter plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel
plaintiff to accept its answer on the ground that plaintiff waived the untimeliness of the answer by failing to reject it. Defendant’s motion was denied and this appeal ensued.

A plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]; Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., ___ Misc 3d ___, 2006 NY Slip Op ______ [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., Misc 3d ___, 2006 NY Slip Op [App Term, 2d & 11th Jud Dists]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App Term, 2d & 11th Jud Dists]). Accordingly, to the extent plaintiff’s application for a default judgment was premised upon plaintiff’s representation that defendant was in default, such representation was incorrect and vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious defense (see Avenoso v Avenoso, 266 AD2d 326 [1999]; see generally CPLR 5015 [a] [3]). Since plaintiff waived any objection to the [*2]untimeliness of the answer, plaintiff is deemed to have accepted the answer. Consequently, to the extent that defendant sought to compel acceptance of the answer, that branch of defendant’s motion is denied as academic.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 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 13, 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 an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. 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]). 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.

In opposition to plaintiff’s motion, defendant’s no-fault litigation examiner stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at independent medical examinations (IMEs), requests for which were made prior to defendant’s receipt of the claim form. As plaintiff correctly asserted, defendant was required to establish by proof in admissible form that the IME notifications were mailed and that plaintiff’s assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). The record reflects that Allegiance Health was responsible for scheduling the IMEs and for mailing the IME notices. Since defendant’s examiner was not [*2]responsible for the scheduling of IMEs or for the mailing of IME notifications, her affidavit was insufficient to establish proper mailing of the IME request letters or plaintiff’s assignor’s failure to appear for the scheduled IMEs. Accordingly, defendant failed to raise a triable issue of fact.

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.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 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 October 27, 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, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto.

Defendant’s assertion that it timely denied the claims lacks merit because the
record does not contain an affidavit from a person with personal knowledge either stating that the denial of claim forms were mailed or setting forth “a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing” (S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to establish that it paid or denied the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses including its defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and its defenses of fraudulent billing and excessive fees (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a [*2]“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]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

—[*1] Barry & Post, LLC, Plainview, N.Y. (Rhonda H. Barry of counsel), for appellant. The Barnes Firm, P.C., Buffalo, N.Y. (Michael J. Cooper of counsel), for respondent.

In a proceeding to permanently stay arbitration of a claim for no-fault benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered February 21, 2006, as denied the petition.

Ordered that the order is affirmed, with costs.

The petitioner contends that arbitration of its insured’s no-fault claim should have been stayed on the ground that its insured was entitled to workers’ compensation benefits as his primary coverage. The insured’s claim for workers’ compensation benefits was denied on the ground that “a self employed cab driver who owns his own cab” is not required to carry workers’ compensation insurance on himself.

In this regard, the petitioner contends that the insured’s “base affiliation” with Kenmore Cab Dispatch Service, Inc. (hereinafter Kenmore), obligated the latter to secure workers’ compensation coverage for the insured. However, the petitioner failed to submit evidence that Kenmore was the insured’s employer at the time of the accident (see Matter of Olistin v Wellington, 3 AD3d 618 [2004]). Indeed, the petitioner stated in its petition that the insured violated his insurance contract “by not informing” the petitioner that “he left his base affiliation” with Kenmore. Moreover, the petitioner failed to include a copy of the insurance policy in the record, and failed to submit any evidence in admissible form that the insured actually violated his insurance contract. Indeed, the petitioner asserted in the petition that it was “not denying coverage on that basis.” [*2]

In view of the foregoing, the petitioner failed to set forth a basis for permanently staying arbitration of the insured’s no-fault insurance claim. 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 (Arlene Bluth, J.), entered November 29, 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 plaintiff’s moving papers failed to establish plaintiff’s prima facie entitlement to judgment as a matter of law. Plaintiff appeals from the denial of its motion for summary judgment.

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, the court correctly held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. [*2]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., Rios and Belen, JJ., concur.
Decision Date: January 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 (Kathy J. King, J.), entered October 13, 2005. The order granted plaintiff’s motion for summary judgment 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 raises no issue with respect thereto.

Defendant failed to establish timely mailing of its denial forms. The affidavit of its claims processor neither alleged a mailing nor “a sufficiently detailed description of defendant’s standard office mailing procedure so as to give rise to the presumption of
mailing” (AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52256[U] [App Term, 2d & 11th Jud Dists]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co., 12 Misc 3d 147[A], 2006 NY Slip Op 51556[U] [App Term, 2d & 11th Jud Dists]). While defendant’s additional affidavits, produced for the first time in defendant’s papers submitted in reply to plaintiff’s opposition to its cross motion, may have established a timely mailing of its denial forms, they were properly disregarded by the court below and may not be considered on appeal (Rubens v [*2]Fund, 23 AD3d 636, 637 [2005]; Lazar v Nico Indus., 128 AD2d 408, 409-410 [1987]; Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]). Accordingly, defendant was precluded
from raising the defense asserted herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

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

—[*1] Sonnenschein, Nath & Rosenthal, LLP, New York, N.Y. (Deborah Renner and Steven M. Levy of counsel), for appellant Allstate Insurance Company; O’Melveny & Myers, LLP, New York, N.Y. (Ralph De Santo of counsel), for appellant GEICO General Insurance Company; Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and Harris Zakarin of counsel), for appellant State Farm Mutual Automobile Insurance Company; Stern & Montana, LLP, New York, N.Y. (Robert A. Stern of counsel), for appellant American Transit Insurance Co.; Short & Billy, P.C., New York, N.Y. (Skip Short and Conrad O’Brien Gellman & Rohn, P.C., Philadelphia, Pa, [Robert N. Felton] of counsel), for appellant Progressive Casualty Insurance Company; and Cozen & O’Connor, New York, N.Y. (Jacob C. Cohn of counsel), for appellant One Beacon Insurance Company (one brief filed). Law Office of Kenneth M. Mollins, P.C., and Franklin, Gringer & Cohen, P.C., Melville, N.Y. (Steven E. Cohen of counsel), for respondent (one brief filed). Melito & Adolfsen, P.C., New York, N.Y. (S. Dwight Stephens and Willey Rein & Fielding, LLP, Washington, D.C. [Craig A. Berrington and Karalee C. Morell] of counsel), for American Insurance Association, New York Insurance Association, Inc., Property Casualty Insurers Association of America, and National Association of Mutual Insurance Companies, amici curiae.

In an action to recover assigned no-fault benefits for medical services rendered, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated June 7, 2006, as denied their motion for summary judgment on the issue of whether they may raise lack of medical necessity as a basis for denying claims for reimbursement [*2]to radiologists seeking payment for magnetic resonance imaging tests provided to no-fault patients pursuant to prescriptions, and granted that branch of the plaintiff’s cross motion which was for summary judgment on that issue.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants’ motion for summary judgment on the issue of whether they may raise lack of medical necessity as a basis for denying claims for reimbursement to radiologists seeking payment for magnetic resonance imaging tests provided to no-fault patients pursuant to prescriptions is granted, and that branch of the plaintiff’s cross motion which was for summary judgment on that issue is denied.

The plaintiff, the owner and operator of radiology facilities that perform magnetic resonance imaging tests (hereinafter MRIs), commenced this action against the defendants to recover assigned no-fault benefits for MRIs performed on patients injured in motor vehicle accidents pursuant to prescriptions issued by the patients’ physicians and/or medical providers. The amended verified complaint alleges that the plaintiff performs MRIs on patients at the request of medical providers without making a diagnosis or performing a physical examination and that the defendants improperly deny many of these claims on the grounds of “lack of medical necessity.” Following the joinder of issue, the defendants moved for summary judgment on the issue of whether they may raise lack of medical necessity as a basis to deny claims for reimbursement to radiologists seeking payment for MRIs provided to no-fault patients pursuant to prescriptions, and the plaintiff cross-moved, inter alia, for summary judgment on that issue. The Supreme Court denied the defendants’ motion and granted that branch of the plaintiff’s cross motion which was for a determination that the defense of lack of medical necessity is not available against radiologists performing MRIs pursuant to prescriptions because these radiologists do not assess medical necessity. We reverse.

New York’s no-fault insurance law, formally known as the “Comprehensive Automobile Insurance Reparations Act” (Insurance Law art 51), was enacted with the objective of promoting prompt resolution of injury claims, limiting cost to consumers, and alleviating unnecessary burdens on the courts (see Pommells v Perez, 4 NY3d 566, 571 [2005], citing Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Session Laws of NY, at 2335). The no-fault law thus provides a compromise: prompt payment for “basic economic loss” (Insurance Law § 5102 [a]) to injured persons regardless of fault, in exchange for a limitation on litigation to cases involving serious injury (see Pommells v Perez, supra; Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]). The no-fault law defines “basic economic loss,” for which accident victims are entitled to reimbursement up to $50,000, as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services” (Insurance Law § 5102 [a] [1] [emphasis added]). Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1 [emphasis added]). An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11).

An assignee “stands in the shoes” of an assignor (Arena Constr. Co. v Sackaris & Sons, 282 AD2d 489 [2001]) and thus acquires no greater rights than its assignor (see Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927 [2005]). Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2003]; West Tremont Med. [*3]Diagnostic, P.C. v GEICO, 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [2006]; see also Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 [2005]). Miller, J.P., Krausman, Fisher and Dillon, JJ., concur. [See 12 Misc 3d 1167(A), 2006 NY Slip Op 51090(U) (2006).]

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 (George J. Silver, J.), entered October 20, 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’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 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 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]). We note that a review of the record on appeal in the case of Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), as well as of the briefs submitted to the Appellate Division on said appeal, reveals that the issue that movant failed to establish a prima facie case on the motion for [*2]summary judgment was raised for the first time on appeal. Although specific objection was raised by the opposition that said issue may not be considered by the Appellate Division, the court
nevertheless determined the appeal based upon said issue. In view of the foregoing, we also consider defendant’s argument, although raised for the first time on appeal, and hold that plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 12, 2007