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 July 11, 2005. The order, insofar as appealed from as limited by defendant’s brief, granted plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw .

Order, insofar as appealed from, reversed without costs and plaintiffs’ motion for summary judgment with respect to the claims for services rendered to assignors Alexander Ryabchenko, Martin Sarnacki and Ronka Weislaw denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Herein, plaintiffs failed to establish that they submitted the claim forms to defendant. Plaintiffs’ proof, consisting of the affidavit of Samira Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., made no reference to said plaintiff’s standard office mailing practices or procedures, and the bare averment that the “required proof of claims [was submitted] in a timely manner” and that bills for the services rendered to the respective assignors were mailed to defendant on given dates did not establish that she had personal knowledge that the claim forms were timely mailed to defendant (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [*2][2005]). While a defendant insurer’s denial of claim forms, indicating the dates on which the claims were received, can be deemed adequate to establish that defendant received the claims (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]), there are discrepancies herein between the claim
forms and denial of claim forms which are not explained on the record. Likewise, defendant’s letters to plaintiff did not set forth with sufficient particularity the specific claims to which the letters referred. Accordingly, since the denial of claim forms and letters are inadequate to establish receipt of the claim forms, and plaintiffs did not otherwise provide proof of proper mailing of the claim forms, the order of the court below is reversed and plaintiffs’ motion for summary judgment is denied (see Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; 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]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 27, 2006

Civil Court of the City of New York, Kings County

KCV97338/04

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $810.32. A trial on the matter was conducted by this Court on September 13, 2006. Based on the evidence and testimony adduced at trial, this Court makes the following findings of fact and conclusions of law.

To establish its prima facie case, Plaintiff submitted a Notice to Admit duly served on the Defendant and an Order issued by Judge Eileen N. Nadelson dated December 8, 2005 granting Plaintiff’s motion for summary judgment and dismissing Defendant’s cross-motion to dismiss. The Defendant moved for a Directed Verdict. The Court reserved decision. With regard to Judge Nadelson’s December 8, 2005 Order, the Court notes that this Order is with regard to a different Plaintiff and a different Index Number separate from the case at bar. Therefore, said Order has no bearing on this case.

With regard to Plaintiff’s Notice to Admit, the Court notes that the purpose of a Notice to Admit is to eliminate from the issues in litigation matters which will not be in dispute at trial. Desilva v. Rosenberg, 236 AD2d 508, 645 NYS2d 30 (2d Dept. 1997); Miller v. Hillman Kelly Co. 578 NYS2d 319 {177 AD2d 1036} (4th Dept. 1991). Defendant’s denial of Plaintiff’s claim is based on Plaintiff’s failure to appear for a scheduled EUO pursuant to a subpoena and lack of coverage based on fraud in that the accident was staged. In an action for first-party no-fault benefits, the Plaintiff establishes its prima facie burden by proof that it submitted a claim setting forth the facts, the amount of the loss sustained, and that payment of no-fault benefits is overdue. 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]; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The Court finds that Plaintiff established its prima [*2]facie case with the submission of its Notice to Admit.

Generally, an insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and that the loss was a covered event within the terms of the policy. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Company, 7 Misc 3d 822, 795 NYS2d 843 [Civ. Ct. Kings County 2005]. Whatever the risk or loss covered, it has long been the insured’s burden to prove coverage under the policy. A.B. Medical Services, id. At 825.

The Plaintiff’s prima facie showing establishes a presumption of coverage. A.B. Medical Services, PLLC, id at 825. Once the Plaintiff makes a prima facie showing, the burden of explanation or of “going forward with the case” falls upon the defendant. Mount Sinai Hosp. v. Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 [2d Dept., 1999]. This burden, in effect, allows the Defendant to disprove the presumption of coverage, thus demonstrating its denial of Plaintiff’s complaints. Palmier v. United States Fidelity and Guaranty Company, 135 AD2d 1057 (3rd Dept. 1987). No-fault insurance policies cover only vehicular accidents. A deliberate collision is not a covered accident. State Farm Mutual Automobile Ins. Co. v. Laguerre, 3035 AD2d 490, 759 NYS2d 531 [2nd Dept. 2003]; Allstate Insurance Co. v.Massre, 14 AD3rd 610, 789 NYS2d 206 [2nd Dept. 2005]. When a collision is an intentional act, not an accident, there is no coverage “regardless of whether the intentional collision was motivated by fraud or malice.” Government Employees Ins. Co. v. Shaulskaya, 302 AD2nd 522, 756 NYS2d 79 [2nd Dept. 2003].

The standard of proof to be applied in the staged accident arena is preponderance of the evidence. Universal Open MRI of the Bronx, P.C.v. State Farm Mut. Auto Ins., 12 Misc 3d 1151(A) (N.Y.Civ. Ct. Kings County 2006); V.S. Medical Services, P.C., v. Allstate Insurance Company, 11 Misc 3d 334, (NY Civ. Kings County 2006); A.B. Medical Services, PLLC, supra .

If an insurer has a “founded belief” that the alleged accident was not a true accident, it can deny the claim based on 11 NYCR 65-3.8(e)(2). The insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that there is no coverage. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Co., 7 Misc. 3rd 11, 699 NYS2d 55 (2nd Dept.). If this threshold is reached, the burden shifts to the Plaintiff to rebut the Defendant’s case. When all the evidence has been submitted, the finder of fact must determine whether the evidence preponderates in favor of the Plaintiff or the Defendant. V.S. Medical Services, P.C., supra .

At trial Plaintiff did not present any witnesses. Defendant called as its principal and only witness Don Willsey. Mr. Willsey stated he has been a State Farm employee for 12 years and for the last 7 years he has been assigned to the Special Investigation Unit where he investigates no-fault claims that are deemed to be suspicious. Mr. Willsey gave testimony about a list of “suspicious indicators” used by State Farm to determine whether there is a basis to deny a claim which includes but is not limited to:

– Recent purchase of the insurance policy. [*3]

– Vehicle insured is an older model.

– P.O. Box is used for the insured address.

– Failure to cooperate with scheduled E.U.O

– Vehicle and/or claimants have been involved in multiple

accidents in a short period of time.

In addition to the above “suspicious indicators” Mr. Willsey stated that State Farm also relies on information obtained from the National Insurance Crime Bureau and an in-house State Farm Link Chart.. Mr Willsey stated that the following suspicious indicators were present in the case at bar:

– Driver of the insured vehicle was involved in 2

accident over a short period of time.

– Driver of insured vehicle was involved in an

accident on 11/19/05 one month before the alleged

accident in question.

– Passenger in 11/19/05 accident had 3 prior accidents

– Both vehicles involved in the alleged accident

were older model vehicles.

– An insurance claim was previously submitted to

another insurance carrier.

– Driver of insured vehicle did not appear for

scheduled E.U.O.

– Insured appeared for scheduled E.U. but was

not cooperative.

Based on the above, Mr. Willsey stated that it was his opinion that the accident was staged. However, on cross-examination, Mr. Willsey testified that he did not personally investigate the claim, he was not involved in the investigation of the claim, he was not present at the scheduled E.U.O., he did not visit the scene of the accident and he was not involved in the decision to deny the claim.

The Court determines that Defendant failed to come forward with proof in “admissible form” to establish the “fact” or the evidentiary “foundation” to buttress its belief that the injuries alleged by the assignor did not arise from an insured accident. The Defendant failed to proffer admissible evidence to rebut the presumption of coverage that attaches to the Plaintiff’s properly completed claim form. Mr. Willsey has no first hand knowledge of the events concerning the facts and investigation of the claim, and most importantly, he was not privy to the discussions and reasoning which resulted in the denial of the claim. The above “suspicious indicators” used by Defendant as a basis for denial of Plaintiff’s claim, taken together or alone does not sustain defendant’s burden by a preponderance of the evidence. At best, such “suspicious indicators” are speculative and not determinative.

Based upon the foregoing, this Court concludes that the Defendant has failed to come forward with evidence of a staged accident or that the loss giving rise to this action was [*4]intentional, and thus the burden of persuasion was never shifted to Plaintiff. Accordingly, judgment is to be entered in favor of Plaintiff in the amount of $810.32 plus statutory interest and attorney’s fees. This constitutes the Decision and Order of this Court.

DATED: December 22, 2006_________________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, Kings County

89030 KCV 2005

Lila P. Gold, J.

Plaintiff commenced this action under the No-Fault provisions of the Insurance Law to recover fees in the amount of $879.73 for medical services provided to its assignor.

Plaintiff proceeded to offer evidence via the presentation of documents and testimony of Octavio Rodriguez, a billing manager for Advanced Heathcare Solutions, L.L.C., formerly known as Medtrx, L.L.C. in order to establish a prima facie entitlement for payment of the no-fault benefits.

To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to the defendant, that defendant received the claim and that defendant failed to pay or deny the claim within thirty days. (See Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133A [App Term 2nd & 11th Jud Dists 2003]).

Mr. Rodriguez testified that it was his duty to generate bills (NF-3) from information sent over a secure internet website from Andrew Carothers, M.D. P.C. Additionally his duties included preparing the envelope with the appropriate label and postage, placing the required documents necessary to process a claim into the envelope, sealing the envelope and bringing it to the post office, where he would receive a proof of mailing which was then scanned into the computer system upon his return to the billing office from the post office.

Plaintiff offered the claim form (NF-3), the signed Assignment of Benefits form (NF-AOB), proof of mailing, together with a copy of the treating doctor’s referral and the MRI narrative into evidence.

Plaintiff further strengthened its prima facie case by having Defendant’s denial form (NF-10) admitted into evidence for the limited purpose of showing that the claim was received timely by the Defendant.(See A.B. Med. Serv., P.L.L.C. v. New York Central Mut. Fire Ins. Co., 3 Misc 3d 136(A); see also Kings Medical Supply, Inc. v. Country-Wide Ins. Co., 5 Misc 3d 767).

At this point Plaintiff rested and Defendant made a motion for a directed verdict as, in his opinion, Plaintiff did not establish a prima facie entitlement to the no-fault benefits. Defendant’s position was that Plaintiff did not lay the proper foundation to have its documents admitted into evidence.

This motion was denied. The court finds that Plaintiff did in fact lay the proper [*2]foundation to submit the documents into evidence, via the testimony of Mr. Rodriguez. “Where an entity routinely relies upon the business records of another entity in the performance of its own business and fully incorporates said information into the records made in the regular course of its business, the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy.” (See Pine Hollow Medical P.C. v. Progressive Casualty Insurance Co., 2006 NY Slip Op 51870U) Since Advance Healthcare Solutions L.L.C. is a billing company whose regular business is to produce bills based on information imparted to them by Plaintiff and maintained these records in the regular course of its business, the proper business record foundation was established to admit the documents into evidence (CPLR 4518[a]). (See Plymouth Rock Fuel Corp. v. Leucadia Inc., 117A.D. 2d 727; see also West Valley Fire District No. 1 v. Village of Springville,264 AD2d 949)

Once Plaintiff established its prima facie entitlement, the burden shifted to the Defendant to substantiate their basis for denying the claim. The Defendant contended that the services provided lacked medical necessity and therefore Defendant was not obligated to pay the claim.

However, the Court finds that before the issue of medical necessity is reached, the Defendant must overcome the fatal defects contained in the NF-10. Namely, the NF-10 was untimely on its face, as it denied the claim on May 2, 2005 after receiving the bill on March 14, 2005. Additionally, the NF-10 is factually insufficient, conclusory and vague in explaining the reason for denial of benefits. (See Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 779 NYS2d 715) The claim was denied for failure to establish medical necessity and the denial failed to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity. (See A.B. Med. Servs. P.L.L.C. v. GEICO Cas. Ins. Co., 2006 NY Slip Op 26133)

To overcome these defects, Defendant called Ms. Michelle Cusano, a Litigation Team Leader for the Defendant, Progressive Insurance Company. She testified that her duties were to review claim files in preparation for litigation. It was her testimony that the NF-10 was timely since a verification request was sent thereby tolling the deadline for the denial. It was her contention that the verification was answered on April 12, 2005 and therefore the NF-10, sent on May 2, 2005, was timely.

She further testified that the NF-10 was not factually insufficient, conclusory or vague in explaining the reason for the denial since it was accompanied by a peer review report which set forth the reason for denial with sufficient particularity and medical rationale. It was her testimony that since she saw the NF-10 and the peer review report in the file and under the general office procedure of mailing, it would have been placed in the claims file contemporaneously with their mailing. Therefore, she deduced that it was mailed together.

Ms. Cusano testified that although she was not the person who was responsible to mail the verification request and it was not even her duty to ensure that the request was sent, she knew that it was sent because she had previously worked in the processing department in the late 1990’s and at that time it was her responsibility to generate the verification requests. She described the procedure she would take in detail; attempting to establish the mailing of the [*3]verification request.

On cross examination, Ms. Cusano stated that the person in the processing department would print three copies of a verification request. One copy was sent to the mail room to be mailed to the person whom they needed verification from; the second copy was placed in a 30-day box, which would be used to monitor whether or not an answer to the request was received; and the third copy was placed in the claim file. It was that third copy, coupled with the fact that the verification request was answered, which led Ms. Cusano to the conclusion that the verification request was properly mailed.

When asked of whom the verification was requested, Ms. Cusano told the court that it was Dr. Kleyman. Plaintiff maintained that if three copies are printed; one copy to Dr. Kleyman, the second copy placed in the 30-day box, and the third copy in the claims file, then the Plaintiff, Andrew Carothers M.D. P.C. was not mailed a verification request. Only then did Ms. Cusano state that sometimes a forth copy is printed.

Plaintiff then asked Ms. Cusano if at the time of her employment in the processing department and now relating to the general office practice, whether she would fill in all the relevent boxes on the NF-10; she answered, “yes.” When asked if a verification request was sent and received, would those boxes be filled in on the NF-10; again she answered, “yes.” When shown that boxes No.28 (Date final verification requested) & #

29 (Date final verification received) on the NF-10 were blank she responded that the boxes were obviously left blank in error.

Within thirty days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 NYCRR 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]). Since the Court finds that the mailing of the verification request had not been proven, the 30-day period was not extended and therefore the denial was untimely on its face. Thus, Plaintiff demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period. (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3])

Moreover, even if Defendant timely issued the denial within 30 days of its receipt of the claim a proper denial of claim must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664) The denial of claim form issued by Defendant in this action, even if timely, was fatally defective in that it omitted items of requested information, and thus was incomplete (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664; Nyack Hosp. v Metro. Prop. & Cas. Ins. Co., 16 AD3d 564).

Additionally, Ms. Cusano’s testimony relating to the general office procedure regarding mailing was vague and conclusory, lacking knowledge of the procedure designed to ensure that items are properly addressed and mailed. (See Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 AD2d 374; Residential Holding Corp. v. Scottsdale Ins. Co., 286A.D. 2d 679) The [*4]portion of her testimony relating to the mailing of the NF-10 strengthened Plaintiff’s prima facie case, that the bills were actually mailed, but did nothing to establish her knowledge of the actual mailing procedures. She admitted that it was not part of her duty to oversee the mailing procedures or to ensure that a peer review report was sent together with the NF-10. Furthermore, she stated that at the time that she worked in the processing department, it was not the general office procedure to mail the peer review reports together with the NF-10s.

Moreover, Defendant’s witness Ms. Cusano could not establish that the peer review report was actually sent to Plaintiff and the NF-10 did not state that a peer review report was attached, rather it merely stated that “Based on the results of an independent peer review, medical justification and/or necessity cannot be established for the services billed. Therefore, your request for reimbursement is denied.”

Although Ms. Cusano described the general office procedure in mailing the verification request and the peer review report, she based her knowledge of the actual mailing of those documents solely on the fact that they were contained in the claim file that she reviewed for litigation purposes. This was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 [2001]). Nor did her testimony state that it was her duty to ensure compliance with said office procedures or that she had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137A, 800 NYS2d 344, 2005 NY Slip Op 50254U [App Term, 2d & 11th Jud Dists]). Inasmuch as Defendant herein failed to establish by competent proof that the verification request was mailed and that the peer review report was mailed together with the NF-10, they did not make the requisite showing to establish that a proper denial was sent. (See Gribenko v. Allstate Ins. Co., 2005 NY Slip Op 52201U; Accessible and Advance Medical P.C. v. Allstate Ins. Co., 2006 NY Slip Op 51599U)

It is apparent to the Court that there are numerous conflicting decisions relating to proper testimony regarding the standard general office procedure of mailing. It is this Courts opinion that for the sake of judicial economy and for the sake of dispensing with the constant mailing issues arising in these cases, the Insurance Companies should produce the proper witnesses from the mailing room, who could testify that it is their duty to ensure that items are properly addressed and mailed or it is their duty to ensure compliance with said general office procedures or that they have actual knowledge that the mailing procedure, as part of the standard general office procedure, is followed.

Although the Court allowed Defendant to call Dr. Hadhoud, the author of the peer review report upon which the denial was based, to testify regarding the necessity of the services rendered, the issue of medical necessity need not have been reached.

The Court finds that, as a matter of law, even if Defendant’s doctor would persuasively testify that the medical service provided lacked medical necessity, this testimony would not cure the legal insufficiency of the proffered untimely denial.

Therefore, judgment should be entered for the plaintiff in the amount of $879.73, plus [*5]interest and attorneys’ fees as provided by the Insurance Law, together with the statutory costs and disbursements in this action.

This opinion constitutes the decision of the Court. A copy of this decision will be mailed to the parties.

Dated:December 21, 2006

____________________________

Lila P. Gold, J.C.C.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant, Progressive Casualty Insurance Company, appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated December 22, 2004 [7 Misc 3d 18], as affirmed so much of an order of the Civil Court, Queens County (Markey, J.), entered March 19, 2003, as, in effect, denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, by permission, as limited by its brief, from so much of the same order as reversed that portion of the same order of the Civil Court which, in effect, granted its cross motion for summary judgment, and substituted a provision denying its cross motion.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant, Progressive Casualty Insurance Company (hereinafter Progressive), denied the claim of the plaintiff, Stephen Fogel Psychological, P.C. (hereinafter Fogel), as assignee of Kim Choy Chong (hereinafter Kim), for no-fault benefits on the ground that Kim had failed to appear for independent medical examinations (hereinafter IMEs) that Progressive demanded before [*2]Fogel submitted the statutory claim forms. Fogel brought this action seeking payment. Progressive moved for summary judgment on the ground that, by failing to appear for the IMEs, Kim had breached a condition precedent to payment on the policy. Fogel cross-moved for summary judgment on the expressly limited ground that, assuming Kim had failed to appear for the IMEs, Fogel was still entitled to payment on the policy for charges incurred before Kim’s failure to appear. The Civil Court, in effect, denied Progressive’s motion and, in effect, granted Fogel’s cross motion. The Appellate Term modified the Civil Court’s order to the extent of denying Fogel’s cross motion and otherwise affirmed the order. We affirm the order of the Appellate Term.

In support of its motion for summary judgment, Progressive was required to establish, prima facie, that it mailed the notices of the IMEs to Kim and that he failed to appear for the IMEs. Progressive failed to meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the mailings or of the nonappearances (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Given Progressive’s failure to meet its burden, denial of its motion was required without consideration of Fogel’s opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

With respect to the cross appeal, the Appellate Term correctly denied Fogel’s cross motion for summary judgment. We agree with the Appellate Term that appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [2004]). The mandatory personal injury endorsement (11 NYCRR 65.12, now 11 NYCRR 65-1.1) provides that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1).

We disagree, however, with the Appellate Term that there is a distinction between the contractual remedies depending on whether the failure to appear for IMEs occurs before submission of the claim form or after its submission. There is no basis for such a distinction, and we decline to impose one. The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_medicalexaminations.htm]). The State Insurance Department’s interpretation is entitled to deference unless “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]). This conclusion furthers, as well, the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224-225 [1986]) and preventing fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]).

Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs “when, and as often as, the [insurer] may reasonably require” (11 [*3]NYCRR 65-1.1). Thus, Fogel’s cross motion for summary judgment was properly denied. Crane, J.P., Krausman, Spolzino and Skelos, 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 (Alice Fisher Rubin, J.), entered August 8, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which, pursuant to CPLR 3126, sought an order dismissing the action due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel and various documents annexed thereto. However, plaintiff’s counsel did not assert a basis of his personal knowledge of the facts and did not lay a sufficient foundation to establish that what counsel represented to be plaintiff’s claim form was admissible under the business records exception to the hearsay rule (see CPLR 4518; People v Kennedy, 68 NY2d 569 [1986]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]; Dayanim v Unis, 171 AD2d 579 [1991]). To the extent defendant issued a denial of claim form, said claim denial merely established that defendant received a claim form submitted by, or on behalf of, plaintiff, but it did not concede the admissibility of the purported claim form or the facts set forth therein (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]). In light of plaintiff’s counsel’s apparent lack of [*2]personal knowledge, plaintiff failed to establish its prima facie entitlement to summary judgment through the submission of competent evidence (CPLR 3212 [b]; see CPLR 4518; Read v Ellenville Natl. Bank, 20 AD3d 408 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U], supra).

Although plaintiff subsequently served an affidavit executed by its president, the affidavit, which was denominated a “Supplemental Affidavit,” was in reality a reply affidavit. Plaintiff could not 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 plaintiff’s moving papers (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D., P. C., 241 AD2d 439 [1997]; Calderone v Harrel, 237 AD2d 318 [1997]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Although defendant’s cross motion to, inter alia, compel discovery was unopposed, the discovery demands annexed to defendant’s cross motion pertained to a different action involving a different plaintiff and a different assignor. As a result, it is unclear what discovery demands defendant served in this action. Accordingly, defendant’s cross motion to, inter alia, compel discovery should be denied with leave to renew upon proper papers.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: December 18, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

Weston Patterson, J.P., and Rios, 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: December 15, 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 (Peter Paul Sweeney, J.), entered September 14, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, 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 first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The denial of claim forms, annexed to plaintiff’s moving papers, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, the claims (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]).

The defendant established that it mailed denial forms within the prescribed 30-day period (11 NYCRR 65-3.8 [c]) through the affidavit of defendant’s representative detailing the standard office procedure for such mailing, which affidavit was sufficient to give rise to the presumption of mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Attached to each denial form was a detailed peer review report which purported to be “affirmed” by defendant’s doctor pursuant to CPLR 2106. They contained a stamped facsimile of the doctor’s signature. On appeal, plaintiff objects, as it did in the court below, to the admissibility [*2]of the reports on the ground that they did not comply with CPLR 2106. In our view, under the circumstances presented, the peer review reports were not in admissible form (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632
[1971]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 102 [1965]) and, thus, defendant has failed to raise a triable issue of fact as to medical necessity. We note in passing that there is nothing in the record to indicate that the doctor himself stamped his signature. In view of the foregoing, plaintiff is entitled to summary judgment 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 and the regulations promulgated thereunder.

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

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

In my view, the stamped facsimile of the doctor’s signature does not render his affirmed peer review reports inadmissible. General Construction Law § 46 states, “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing” (emphasis added) (see also Rulle v Ivari Intl., 192 Misc 2d 266 [App Term, 2d & 11th Jud Dists 2002]). Consequently, even if the doctor’s signature was stamped, it is sufficient to comply with CPLR 2106, which requires the statement to be “subscribed and affirmed.”

Accordingly, defendant’s submissions raise a triable issue of fact as to medical necessity, and I would vote to affirm.
Decision Date: December 15, 2006

—[*1]

Carpinello, J. Appeal from an order of the Supreme Court (Dawson, J.), entered November 18, 2005 in Clinton County, which, inter alia, partially granted defendant’s cross motion to dismiss the complaint.

Plaintiff was injured in an April 2002 automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier.^[FN*] At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action. In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages). At issue is an order of Supreme Court which, among other things, dismissed the bad faith and tort causes of action. We now affirm.

Construing the complaint in the liberal light to which it is entitled on a motion to dismiss (see CPLR 3211 [a]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we nevertheless [*2]conclude that the causes of action sounding in tort and bad faith were not properly stated. The essence of plaintiff’s dispute with defendant is the latter’s breach of contract in failing to provide her with continued no-fault benefits following her accident. Plaintiff has failed to allege or demonstrate the creation of a relationship or duty between herself and defendant separate from this contractual obligation; therefore, no independent tort claim lies (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 192-193 [2000], lv dismissed 96 NY2d 823 [2001]). Moreover, no separate cause of action exists in tort for an insured’s alleged bad faith in failing to perform its contractual obligations (see New York Univ. v Continental Ins. Co., supra; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [2005]; Royal Indem. Co. v Salomon Smith Barney, 308 AD2d 349, 350 [2003]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002], lv dismissed 99 NY2d 552 [2002]). Thus, the bad faith claim was also properly dismissed.

To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant’s conduct constitutes a tort independent of the contract (see New York Univ. v Continental Ins. Co., supra at 316-317; Logan v Empire Blue Cross & Blue Shield, supra at 194) and because her allegations do not demonstrate that defendant, in dealing with the general public, engaged in egregious or fraudulent conduct evincing “such wanton dishonesty as to imply a criminal indifference to civil obligations” (New York Univ. v Continental Ins. Co., supra at 316 [internal quotation marks and citations omitted]; accord Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]; see Varveris v Hermitage Ins. Co., 24 AD3d 537, 538 [2005]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 46 [1991], lv dismissed 78 NY2d 1072 [1991]; Hebert v State Farm Mut. Auto. Ins. Co., 124 AD2d 958, 959 [1986], lv dismissed 69 NY2d 1038 [1987]; Korona v State Wide Ins. Co., 122 AD2d 120, 121 [1986]).

To the extent preserved, plaintiff’s remaining contentions have been reviewed and rejected, including the claim that the driver of the vehicle should have been added as a party.

Cardona, P.J., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes

Footnote *: Plaintiff was not driving her vehicle at the time of the accident but rather was a front-seat passenger.

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 (Lila Gold, J.), entered August 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2005]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of any of the appended claim forms to defendant. However, said deficiency was cured by defendant’s denial of claim forms which adequately established that plaintiff sent, and defendant received, said claim forms (see PDG Psychological P.C. v Utica Mut. Ins. Co., 11 Misc 3d 128[A], 2006 NY Slip Op 50246[U] [App Term, 2d & 11th Jud Dists]).

This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon a lack of medical necessity, the defendant is precluded from asserting said defense (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U] [App Term, 2d & 11th Jud Dists]; SZ Med. P.C. v Clarendon Natl. Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51428[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s NF-10 denial of claim forms merely advised plaintiff that the claims were denied pursuant to peer review reports [*2]and that a copy of these reports would be furnished upon written request. Since there is no evidence that the peer review reports were sent to plaintiff within the 30-day claim determination period, and the denials were otherwise devoid of any factual basis to support them, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.M. Med. Servs., P.C. v Allstate Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], supra) and plaintiff is entitled to summary judgment upon said claims.

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: December 13, 2006

[*1]

Civil Court of the City of New York, Queens County, December 13, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Joaquin J. Lopez of counsel), for plaintiff. Melli, Guerin & Melli, P.C., New York City (Kevin Addor of counsel), for defendant.

OPINION OF THE COURT

Bernice D. Siegal, J.

Plaintiff, a health care provider, commenced the within action to recover reimbursement from defendant insurer for services rendered to plaintiff’s assignors including Victoria Orlando,^[FN1] pursuant to New York State’s No-Fault Insurance Law. At trial, the parties stipulated to the following facts:

Plaintiff had mailed and defendant had received eight separate bills, together with an assignment of benefits, as per the following: a claim in the amount of $235.90 for services from February 17, 2004 to March 11, 2004, mailed on March 30, 2004; a claim in the amount of $67.40 for services from April 7, 2004 to April 15, 2004, mailed on May 10, 2004; a claim in the amount of $33.70 for services on April 20, 2004, mailed on June 1, 2004; a claim in the amount of $101.10 for services from May 4, 2004 to May 26, 2004, mailed on June 17, 2004; a claim in the amount of $122.13 for services from November 24, 2003 to November 26, 2003, mailed on December 24, 2003; a claim in the amount of $202.20 for services from December 3, 2003 to December 18, 2003, mailed on January 13, 2004; a claim in the amount of $235.90 for services from December 22, 2003 to January 14, 2004, mailed on February 12, 2004; and a claim for $202.20 for services from January 20, 2004 to February 5, 2004, mailed on March 10, 2004—the total sum of the above eight claims being $1,200.53.

It was further stipulated that the defendant had failed to deny any of the claims and that the claims remain unpaid. After the stipulation was duly noted for the record, both sides rested. However, despite the acquiescence by defendant as to the principal amounts due and owing, two issues of law were presented, along with a third asserted by defendant in its posttrial memorandum of law: (1) what are the statutory attorney’s fees due plaintiff; (2) what is the statutory interest due plaintiff; and (3) when does the statutory interest accrue.

The relevant provisions governing interest, under the relevant no-fault regulations, are 11 NYCRR 65-3.8 (a) (1) and 65-3.9 (a) and (c).

11 NYCRR 65-3.8 (a), as is pertinent hereto, provides that “(1) No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim . . .  .”

Section 65-3.9 (a) provides as follows:

“All overdue mandatory and additional personal injury protection benefits due an . . . assignee shall bear interest at a rate of two percent per month, calculated on a pro rata basis using a 30-day month. When payment is made on an overdue claim, any interest calculated to be due in an amount exceeding $5 shall be paid to the . . . applicant’s assignee without demand therefor.”

Section 65-3.9 (c) provides, as is relevant hereto, that “[i]f an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form . . . , interest shall not accumulate on the disputed claim . . . until such action is taken.”

The relevant provisions governing attorney’s fees, under the relevant regulations, are the following.

11 NYCRR 65-3.10, which provides, in pertinent part, as follows:

“(a) A applicant or an assignee shall be entitled to recover their attorney’s fees, for services necessarily performed in connection with securing payment, if a valid claim or portion thereof was denied or overdue. . . . If such a claim was overdue but not denied, the attorney’s fee shall be equal to 20 percent of the amount of the first-party benefits and any additional first-party benefits plus interest payable pursuant to section 65-3.9 of this subpart, subject to a maximum fee of $60.”

However, pursuant to Insurance Law § 5106 (a), such attorney’s fees are “subject to limitations promulgated by the superintendent [of the New York State Department of Insurance].” The regulation setting forth those limitations is 11 NYCRR 65-4.6 which, as is relevant to the matter at bar, provides that:

“(c) Except as provided in subdivisions (a) and (b) of this section [those sections dealing with claims that were neither denied nor overdue or which were resolved prior to arbitration], the minimum attorney’s fee payable pursuant to this subpart shall be $60 . . .

“(e) . . . the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the . . . court, subject to a maximum fee of $850.”

The dispute between the parties is not so much as to the applicability of the foregoing provisions, but rather the manner in which they are to be applied: the plaintiff provider contending that the statutory interest and attorney’s fees awarded should be based upon each individual claim as submitted through an NF-3 proof of claim; the defendant insurer arguing that the measure of the statutory interest and attorney’s fees be determined by the aggregate of bills which are the subject of the within no-fault action and that interest should be calculated from the date of the commencement of the arbitration or lawsuit. [*2]

Proceeding backwards from the third issue presented—when does the interest accrue—the court acknowledges case law wrestling with the interpretation of 11 NYCRR 65.15 (h) (3) (the predecessor to section 65-3.9 [c]), such as the meaning of “applicant” vis-à-vis an “assignee” provider and whether a distinction should be made between timely denials and late denials (see Tsai Chao v Country-Wide Ins. Co., 11 Misc 3d 1090[A], 2006 NY Slip Op 50794[U] [Nassau Dist Ct 2006]; East Acupuncture, P.C. v Allstate Ins. Co., 8 Misc 3d 849 [Civ Ct, Kings County 2005]). However, the patently clear and unambiguous language in section 65-3.9 (c) referring to “the receipt of a denial of claim form” as a key element in determining the date of accrual thereunder shows the defendant’s argument to be wholly disingenuous, especially in view of the fact that defendant had stipulated at trial that there were no denials. Clearly, then, the defendant’s contention on this issue is totally without merit and whatever interest accruing in this case is to be calculated, pursuant to 11 NYCRR 65-3.8, from 30 days after receipt of the particular claim.

With respect to the other issues presented, the court notes that the language of the aforementioned provisions refer to “claim” in the singular. However, the question remains whether a “claim” refers to each bill submitted or, as argued by the defendant, to the aggregate of the bills for which a provider seeks reimbursement through a single court action.^[FN2]

With respect to interest, the clear implication found in appellate case law in the Second Department is that statutory no-fault interest is payable as per each claim as per each particular NF-3 submitted for payment (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2d Dept 2006]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338 [2d Dept 1994]). Furthermore, this court finds such interpretation to be the most logical and reasonable, especially where, as here, the plaintiff’s complaint seeks to recover upon several different claims, each of which has a different date upon which interest begins to accrue (i.e., 30 days from receipt of the particular NF-3).

The case law, however, regarding the manner in which the attorney’s fees provisions are to be applied appears less clearly settled. The Appellate Division in Smithtown Gen. Hosp. v State Farm (supra), in reversing a decision regarding attorney’s fees, held that the lower court “incorrectly interpreted the $850 ceiling to apply to the entire action, rather than to each claim, and failed to set a minimum fee of $60 per claim” (207 AD2d at 339). Following the Smithtown case insofar as awarding attorney’s fees for each claim set forth in separate causes of action, as opposed to the entire action, are the decisions in 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]) and 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]).

On the other hand, the court notes a recent decision holding contra to Smithtown—Marigliano v New York Cent. Mut. Fire Ins. Co. (13 Misc 3d 1079 [Civ Ct, Richmond County 2006]), citing an October 8, 2003 opinion letter issued by the New York State Department of Insurance (which opinion letter was also cited by the defendant in its memorandum). The court found such opinion not inconsistent with the Smithtown decision which dealt with multiple claims of several assignors, rather than of one assignor, as is the case herein and in Marigliano. The opinion letter states that

“[the] total amount [of attorney’s fees] is derived from the total amount of individual bills disputed in . . . a court action . . . , regardless of whether one bill or multiple bills are presented as part of a total claim for benefits, based upon the health services rendered by a provider to the same eligible insured” (Ops Gen Counsel NY Ins Dept No. 03-10-04 [2003]).

Courts have recognized opinions of governmental agencies responsible for the administration of a statute, such as opinion letters from the New York State Department of Insurance, to be entitled to great deference

“[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 . . . [unless] the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent [in which case] there is little basis to rely on any special competence or expertise of the administrative agency and its interpretative regulations are therefore to be accorded much less weight.” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; see also Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303 [2005]; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675 [3d Dept 1981].)

The same principle has similarly been applied to an agency’s interpretation of its own regulations (see Matter of Howard v Wyman, 28 NY2d 434 [1971]; Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499 [2005]; Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337 [2004]; Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 73 [App Term, 2d & 11th Jud Dists 2005]). However, “[A]lthough the interpretation of regulations made by the agency responsible for their administration is generally to be accorded deference, an agency is not thereby freed of the obligation to read those regulations reasonably and rationally” (Matter of Mutual Redevelopment Houses v New York City Water Bd., 279 AD2d 300, 301 [1st Dept 2001]; see also Howard v Wyman, supra; Kurcsics v Merchants Mut., supra; KSLM-Columbus Apts. v New York State Div. of Hous. & Community Renewal, supra; 427 W. 51st St. Owners Corp., supra).

Notwithstanding the Marigliano court’s well-written decision in support of the October 8, 2003 opinion letter, this court respectfully disagrees and finds the opinion letter unpersuasive for several reasons.

Firstly, the court finds that, upon reading the opinion letter in question, there is nothing contained therein indicative of the Insurance Department’s involvement in issuing such opinion of “knowledge and understanding of underlying operational practices or [entailing] an evaluation of factual data and inferences to be drawn therefrom . . . [or reliance] on any special competence or expertise” rather than being a matter of “pure statutory reading and analysis, [which in the latter instance is] to be accorded much less weight” (Kurcsics, supra at 459).

Secondly, whether or not involving a matter reliant upon the agency’s expertise, the court finds the interpretation offered by the defendant herein, as well as by the Superintendent in the opinion letter and by the court in Marigliano, to be unreasonable. In the letter in question, the [*3]term “total,” a word not found in section 65-4.6 (e), is inserted as a qualifier of the term “first-party benefits” without any clear and apparent explanation for doing so, aside from creating a basis for the Department’s interpretation. Perhaps the most compelling argument against the supposed “reasonableness” of such interpretation, making the awarding of statutory attorney’s fees applicable to the aggregate of claims in a no-fault action, whether or not pertaining to only one or more than one assignor, is that it runs counter to a bedrock principle of the No-Fault Law itself, i.e., Insurance Law article 51, the Comprehensive Motor Vehicle Insurance Reparations Act, specifically, in Insurance Law § 5106 (a): “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred” (emphasis added). As the Court of Appeals has expressed it, “the goals of the speedy payment objective of the No-Fault Law . . . a driving force behind . . . the no-fault . . . insurance laws, focus on avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims.” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 284 [1997]; see also Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986].)

The interpretation sought by the Superintendent also would force a provider to wait until all treatment is concluded before billing an insurance company—an interpretation plainly running afoul of other insurance regulations. As was also said by the court in A.M. Med. Servs. (supra at 25, col 1),

“such standard [proffered by the defendant herein and the Department of Insurance] not only flies in the face of the regulatory policy of promoting prompt payment of claims, but also provides carriers with a disincentive to settlement, and encourages the undesirable effect of increasing the existing tsunami that is pending no-fault litigation in this county.”

Moreover, there is the unambiguous, explicit language of the Appellate Division in the Smithtown decision. (See Visiting Nurse Serv. of N.Y., supra at 506; Oberly v Bangs Ambulance, 96 NY2d 295 [2001].) This court cannot ignore the plain fact that the statutory “proof of claim” form refers to an NF-3 (or functional equivalent) which, while often enumerating a number of medical services provided over more than one date, relates to a single bill, there also often being more than one NF-3 upon which a no-fault complaint seeks recovery. The court also finds significant the fact that, despite years of opportunity to advocate the amending of the no-fault regulations set forth above to either clarify or redefine the term “claim” as it relates to the application of interest and attorney’s fees, the Insurance Department has failed to do so, while a number of no-fault provisions have been amended (e.g., 11 NYCRR 65-3.10^[FN3] and 65-4.6^[FN4]— the very subject of the opinion letter—have, together, been amended several times since 2001). [*4]

Therefore, this court, following Smithtown and its progeny, finds that the statutory attorney’s fees shall be awarded as per each NF-3 herein, rather than upon the total principal awarded by the court.

Accordingly, judgment is awarded to plaintiff provider in the principal aggregate amount of $1,200.53, with interest accruing on each of the eight claims at the rate of 2% per month in accordance with section 65-3.9 (a), each said amount of interest accruing 30 days from the date of submission of each such claim.

Plaintiff shall further be awarded attorney’s fees as to each NF-3 herein pertaining to assignor Victoria Orlando, equal to 20% of the amount set forth in each such NF-3 plus interest, provided that each such fee is not less than the statutory minimum of $60 nor in excess of the statutory maximum of $850.

Footnotes

Footnote 1: Prior to trial, the claims with respect to all assignors other than Victoria Orlando had been settled between the parties.

Footnote 2: It is worth noting that the defendant argues in favor of aggregating the claims without any justification except it would have to pay more for interest and attorney’s fees, but the court notes that the bills themselves represent, with the exception of one NF-3, bills for services rendered over a period of a month and, nothing to the contrary in defendant’s memorandum, appear to be a reasonable and rational billing practice.

Footnote 3: Section filed Aug. 2, 2001; amendment filed Jan. 17, 2003, eff Feb. 5, 2003 (amended [a]).

Footnote 4: Section filed Aug. 2, 2001; amendments filed Apr. 11, 2002 as emergency measure; July 9, 2002 as emergency measure; Oct. 4, 2002 as emergency measure; Nov. 27, 2002 as emergency measure; Jan. 17, 2003 as emergency measure; Jan. 17, 2003, eff. Feb. 5, 2003 (amended [b], [e]).